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 ammd­

ed and abridged by tile procedure in Art. 368-'Law' under Art. 13(2)

whether includes constitutional amendt~nJs-Scheme of Constitution­

Funda1nerrtal rights nd1ether intended to be permanent and unamend­

abl~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) Ameod­

ment Act, 1964, the validity of the said Amendment Act was also chal­

len~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 Consti­

tution (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 Consb­

tution. 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

pe™>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 Consti­

tution,

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 enforc­

ed without taking awar. or abridging the fundamental rights. While re­

cognising the immutab11ity of the fundamental rights, subject to social

control, the Constitution itself provides for the suspension or the modifi­

cation 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 con­

ferred by the said Pans a fundamental right. Even during grave emer­

gencies Art. 358 only suspends Art. 19 and all other rights are untouch­

ed except those sperifically suspended by the President under Art. 3S9.

[789 H; 790 D]

The Constitution has given a place of permanence to the fundamen­

tal freedoms. In giving to themselvea tho Constitution the people have

r .. erved the fundamental freedoms to themselves. Art. 13 merely in­

corporates that reservation. The Article is however not the source of

the protection of fundamtntal rights but tho expression of the reserva­

tion. The importance attached to the fundamental freedoms

is so

trans­

cmdental 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 exer­

cise 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 else­

where. The completion of the procedural steps cannot be said to culmi­

nate 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 im­

plied 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 Consti­

tution 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 defi­

nition 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 (7950-

796 CJ

Article 3 of the Constitution permit• changes in States and their boun­

daries 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 Commis­

sio111!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 ac­

ceptecl. 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

765

a political que.!tion; it will only be holding that Parliament has no power

to amend particular articles of the Constitution for any purpose whatso­

ever, be it

political or otherwise. [804 E-GJ

(vi) If power to abridge the fundamental rights is denied to Parlia­

ment revolution is not a necessary result. The existence of an all com­

prehensive power canno~ prevent revolution if there is chaos. in t~e coun­

try 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 pre­

vious 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, inas­

much 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 amend­

ment 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 Consti­

tution 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 neces­

sary 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 doc­

trine 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 funda­

mental 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 consi-E

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 Jti­

cle 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

bet­

ween them there should be correspondence and harmony. [857H-858C]

(ii) It is wn:.ng to think of the Fundamental Rights as within Padia­

ment'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 elaho­

rate. 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~stit11-

tional 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 in­

tended 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 pre­

vent the Sfate from placing certain matters outside ~he amendin.g proce­

dure,. \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 g

1Jaranteed 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 ~ non­

obstanre 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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®LAKNATH V. PUNJAB 769

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 there­

fore 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•a­

tion 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 compen­

sation 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

Fundamen

1

al 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. (dis­

senting): Article 368 carries t1'·· power to amend all parts of the Consti-

8

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 pro­

vides 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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GOLAKNATH v. PUNJAB 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

Consti­

tution 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 1l. 368. For it is somewhat A

contrJdictory th:tt in Art. 368 p0Y.~r should hav.c been given to amend

;y 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 .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erch· 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 1l. 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..J-

mcut hcing only of the rclcv<1nt provi~ions of Part III which were com· D

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 possibi­

lity

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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GOLAKNATH v. PUNJAB 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 over­

ruling. [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 prospec­

tive 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 prin­

ciple 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

Consti­

tution 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. 368. All other provisions of the

Constitution can be amended

by recourse to Art. 368 only. No other

article confers the power of amending the Constitution.

[904 E-F]

(ii) The power to amend the Com;titulion cannot be said to reside

in Art. 248 and List I, item 97 because if amendment could be made by

ordinary legislative process Art. 368 would be meaningless. Under the

residual power the Parliament has no competence to make any law with

·resp<ct to any matter enumerated in Lists II and III of the 7th Schedule,

but under Art. 368 even Lists II and Iii can be amended. Moreover a

law passed by residual power is passed by virtue of Art. 245 and must be

subject to the provisions of the Conc;titution so that it ·cannot derOitate

from the Constitution or amend it. Such a law would be vo;d. [905 C-F]

(iiil Article 368

gives the power of amending

'this Constitution'.

This Constitution means every part

of

the Constitut:~n including Part III

and Art.

13(2). Thus Art. 13(2) is also within the reach of the

amend­

ing oower. Instead of controlling Art. 368 it is controlled by that Article.

[906 C-D;

HJ

(iv) The contention that a constitutional

amen..:ment under Art. 368

is a law within the meaning of Art. 13 must be rejected. The distinction

between the Constitution

and law is so fundamental that the Constitu·

tion

is not regarded as a law or a

legislative act. The Constitution means

the Constitution

as amended. An -amendment made

in 1,;onformity with

H Art. 368

is a

Tiart of the Constitution and is likewise not law. Save as

exoressly provided in Arts. 4, I 69 Fifth Schedule Part D and Sixt~

Schedule para 21 no law can amend the Constitution and a law which

purports to make such an amendment is void. It is for this reason that

Art. , 368 avoids all reference to law meking by the Parliament. There

LJ Sup. Cl/67-4 .

774 SUPREME COURT REPORTS [l 967] 2 S.C.R.

are also n1at;rial differences between the ordinary laW making procedure

and the procedure under the Article. [907 B-F; 908 D-HJ

If a constitution::il amendment creating a new fundamental ·right and

incorporating it in Part III were a law, it would m>t be open to the

Parliament by a subsequent am~ndment to abrogate the new fundamental

right for such an amendment \.\'ould be rcpugn:..1nt to Part III. But the

ctJnclusion is absurd for the body which enacted the right can surely

take it away by the same process. [909 E]

Me1rhury v. Madison, (1803) 1 Cranch 137: 2 L.Ed. 60 and Riley v.•

Carter, 88 A.L.R. 1008, referred to.

(v) There

is no

conflict between Arts. 13(2) and 368. The two

articles operate

in different fields, the former in the field of law, the

lat,ter in that of constitutional amendment.

[910 BJ

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(vi) The 11011-ohsrante clause in Art. 35 does not show that the • C

article is not amendable. The non-oh'itante clause is to be found also in

Arts. 258( I),, 364, 369. 370 and 371A. No one has suggested that these

articles arc not amen~,able. [910 DJ

(vii) The words· 'fundamental' used ;. regard to rights in Part III

and the word 'guaranteed' in Art. 32 do not mean that the said rights

cannot be amended. The Constitu:ion is never at rest~ it change3-with.

the progress of time. The scale of values in Parts Ill and IV is not

immo'!tal and the~-e· P:lrts being parts of the Constitution are not immune

from amendment under Art. 368. [910 F-GJ

The impugned amendments to be Constitution w~re made to meet the

situations created by decisions of this Court and to carry out urgent agra·

rian reforms. If it is held that the rights conferred by Part III cannot

be abridged or taken away by constitutional amendments, all these

amendments wou]d be invalid. The Constitufion makers could not have

intended that the rights conferred by

Part III could not be altered for

giving effect

to the policy of

Part IV. Nor was it inte11ded that defects

in P"rt Ill could not be cured or that oossible errors in judicial interpre­

tations of Pan 111 could not be rectified by oonstitutiot)td

1

amendments.

[913

D-E]

(viii) It

cailnot be said that the people in cxcrci<-:e of thei·r sovereign

power have placed the fundamental rights beyond the reach of the

amending power. The people acting through the Constituent Assembly

reserved for themielves certain rights and liberties and o·rJained that

they shall not be. curtailed by ordinary legislation. But the people by

the same Constitution also authorised the Parliarner to m·ake amend­

ments to the Constitution. In exercise of the amending power the

Parliament has amole anthoritv to abridge or take away ,the fundamental

tights under Part 111. [915 B-CJ

Merely because of possibility of abuso, the power cannot be denied.

[916 HJ

Webb v. Owrim, [1907j A.C. 81 and An1a/gamated Societv of Eni?i­

neers v. The Adelaide Steonirhlp Company Limited & Ors. 18 C.L.R. 129,

referred to.

(ix) The main part of Art 368 gives the power to amend or make

chang<>s in the Constitution. A change is aot necessarily an. improve­

ment. Normally the change is made with the object of making an im­

provement but the experiment may fail to achieve the purpose. [916 A]

Livermore v. E. G. Waite, 102 Cal. 113-25 LR.A. 312 and Nationo(

J•rohihitia~ ca.W'. 253 ·U.S. 350, referred to.

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GOLAKNATH V. PUNJAB 775

(x) The best exposition of the Constitution is that which it has re·

ceived from contemporaneous judicial decisions and enactments. No one

in Parliament doubted the proposition that fundamental rights could be

amended, when the First Amendment Act of 1951 was passed. The con­

cept of amend.ability was upheld in S. Krishnan & Ors. v. State of Madras

(1951) S.C.R. 621 decided in 1951, in Sankari Prasad decided in 1952 and

Sajjan Singh decided in 1964. [918 C-D]

(xi) There is no provision in the Constitution for cal.ling a conven­

tion for its revision or for submission of any proposaJ for amendment to

the referendum. [918

G)

(xii) The impugned amendments affected Arts. 226 and 245 only indirectly and did not require ratification under the proviso to Art. 368.

[919 D-HJ

Jn validating

the impugned laws Parliament was not encroaching

on the State List.

Jt was only validating the said laws and such constitu­

tional validation was within its

competenct>. [920 C-E]

(xiii) The ·abolition of Zamindari was a necessary reform. It is the

First Constitution Amendment Act that made this reform possible. No

legal argument can restore the outmoded feudal Zamindari system. What

has been done

cannot be undone. The battle for the past is lost. (921 B.C]

(xiv) Jf the First, Fourth, Sixteenth & Seventeenth Amendment Acts

are void they do not legally exist from their inception. They cannot be

valid from 1951 to 1967 and invalid thereafter. To say that they were

valid in the past

and

will be invaJid in the future is to amend .the Const!·

tution. Such a naked power of amendment is not given to the Judges

and e""erefore the doctrine of prospective overruling cannot be adopted.

[921 D-EJ

It

0

is not possible to s&y that the First and Fourth Amend"1cnts though

otiginally valid have now been validated by acquiescence. If they in·

fringe Art. 13(2) they were void from their inception. If these amend,

mcnts are validated by acquiescence the Scve11tccnth Amendment i">

equally validated. [921 F; 922 BJ

(xv) The contention that Dr. Ambcdkar

mental

rights as amendable is not supported

Constituent Assembly. [922 C-DJ

did not regard the

funda­

by the speeches in the

Per Ramaswami

J.-(i) In a written Constitution the amendment of

the

Constitutiof'I is a substantive constituent act which is made i'l the

exercise

of the sovereign power through a predesigned procedure

uncon·

nected witn ordinary legislation. The amending power in Art. 36S is

hence sui generis and cannot be compared to the law making power of

Parliament pursuant to Art. 246 read with Lists II and Ill. It follows

that the expression 'law' in Art.

13 ( 2) cannot he construed as including

an amendment of the. Constitution which is achieved by Parliament in exerciSe of its sovereign constituent power, but must mean law made by

Parliament in its legislative capacity under Art. 246 read with List I and

lII of the 7th Schedule. It is also clear on the same line of reasoning

that

law. in Art. 13(2) cannot be construed so as to include 'law' made

by Parliament under Arts.

4, 169, 392.

5th Schedule Part D and 6th

Schedule para

21. The amending power of Parliament exercised

under

these Articles stands on the same pedc~tal as the constitutional amend·

men! made under Art. 368 so far as Ar\. 13(2) is concerned. [930 H-

931 EJ

(ii) The language of Art. 368 is perfectly general and cmpowe1>1

Parliament to amend the Constitution without ;;iny exception whatsoe\'er.

Sul'REME COURT REPORTS (1967] 2 S.C.R.

The use of the word 'fundameatal' to de<eribe the rights in Part Ill and

the word 'guaranteecl' in Art. 32 cannot lift the fundamental rights above

the Con.stitution itself. [931 F, HJ

(ili) It is unrea.,onable to suggest that what Art. 368 provides is only

the mechanics

of the procedure for amendment and not the power to

amend.

The significant fact that a separate part has

been devoted in the

Constitution

for

"amendment of the Constitution" and there is only one

Article in that Part shows that both the power and the procedure to

amend are enacted in Art. 368. Again the words "the Constitution shall

stand amended in accordance with the terms of the Bill" in Art. 368

clearly contemplate

and provide for the power to amend after the

re·

qui jte procehre has been followed. [932 C-EJ

(iv) The power of constitutional amendment cannot 'all within Arts.

246 and 248 read wirh item 97 of List I bei:ause it is illogical and a COD·

tradiction in terms to say that the amending po· "/Cr can be exercised

"subject to the provisions of the Constitution" as the power under these

articles must be. [933 BJ

(v) There is no room for an implication in the construction of Art.

368. If the Constitution makers wanted certain basic f°"tures t<' be

un=endable they would have said so. [933 G·HJ

State of West Bengal v. Union of India. [1964J I S.C.R. 371 and ln

re The Berubari Union and Exchange of Enclaves [1960J 3 S.C.R. 250,

referred to.

The concepts cf liberty and equality arc changing and dynamic and

hence the notion of j)Cnnanency or immutability cannot be attached to

any of the fund>mental rights. The adjustment between freedom and

compulsion, between the rights of individuals and the social interest and

welfare must necessarily be a matter for changing needs and conditions.

The proper aDproach is therefore to look upon the fundamental rights of

lbe individual as conditioned by social responsibility, by the necessi·

tics of the society, by the balancing of interests and not as pre-ordained

and untvuchable private rights. [934 E-935 CJ

(vi) It must not be forgotten that neither the rights in Art. 31 nor

those in Art. 19 are absolute. The purposes for which fundamental

rights can be regulated which arc specified in els. (2) to (6) could not

have been assumed by the Constitution makers to be static and incapable

of expansion. It cannot be a.~umed that the Constitution makers in·

!ended to forge a polit!::al strait-jacket for generations to come. Today

at a time when absolutes arc discredited, it must not be too readily assum·

cd that there are basic features of the Constitution w~'~h shackle the

amending power and which take orecedence over the general welfare of

the nation and the need for agrarian and social reform. [936 B·93 7 CJ

(vii) In construing Art. 368 it is essential to r..:membcr the nature

ond subject matter of that Article and to interpret it subj<ctat mattrks.

lbe pow<-'r of amendment is in point of quality an adjunct of sovereignty.

It is

in truth the

exercise of the highest sovereign oo\vcr in the State. If

the 1mending power ic; an adjunct of sovereignty it does not admit of

a.ay 'mitaticns. [93 7 DJ

t·nii) If the fundamental rights arc uoamcndable and if Art. 368

does

not include any such power it

follows that the amendment of, say,

Art. 31 by in,.rtions of Arts. :;JA and 318 can only be made by a

violent

revolution. It is doubtful if the proceedings of a new Consti­tuent Assembly that may be called will have any legal validity for if the

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GOLAKNATH v. PUNJAB 777

A Constitution provides its own method of amendment any other method

will be unconstitutional and void. [490 A-Bl

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George

S. Hawke v. Harvey C. Smith, 64 L.Ed. 871 and Feigmspan

v. Bodine, 264 Fed. 186, referred to.

(ix) It is not permissible in the first place to assume that in a matter

of constitutional amendment there will be abuse of power and then

utilise it a. a test for finding out the scope of the amending power. In

the last analysis political machinery and anificial limitations will not pro-

tect the people from themselves.

(941

F-G]

State of West Bengal v. Union of India, [1964] l S.C.R. 371 and

American Federation of Labour v. American Sash & Door Co. 335 U.S.

538, referred to.

(x) What the ·impugned Act purpons to do

is not to make any

land legislation but to protect and validate the legislative measures passed

by

dilferC!!t State legislatures. This was within the legislative compe­

tence of Parliament. (942 FJ

Leser v. Garnett, 258 U.S. 130, National Prohibition Cases,. 253

U.S. 350 and United States v. Sprague, 282 U.S. 716, referred to.

Articles 226 and 245 were not directly affected

by the impugned Act

D and therefore no ratification by the

St•t• Legislatures was necessary. {942

D-H; 945 DJ

E

A. K. Gopalan v. State of Madras, [195CJ S.C.R. 88, Ram Singh &

Ors. v. State of Delhi & Anr., [1951] S.C.R. 451, Express Newspapers

(Pvt.) Ltd. v. Union of India, (19591 S.C.R. 12, Atiabari Tea Co. Ltd.

v. State of Assam, [19611 I S.C.R. 809 and Naresh Slzridhar Mlrajkar v.

State of Maharashtra [1966] 3 S.C.R. 744, referred to.

(xi) Even on the assumption that the impugned Act is unconstitt>­

tional thr principle of stare decisis must be applied to the present case

and the plea made by the petitioners for reconsideration of Sankar/

Prasad's case and Sa/Jan Singh's case must be rejected. (948 D-EJ

On the findings it was not necessary to express an opinion on the

doctrine of prospective overruling of legislation. [948 G-H]

F ORIGINAL JURISDICTION: Writ Petition No. 153 of 1966.

(Under Article 32 of the Constitution of India for enforcement of

the Fundamental Rights)

And

G Writ Petition No.

202 of 1966.

(Under Article 32 of the Constitution of India for enforce­

ment of the Fundamental Rights)

And

H Writ Petition No. 205 of 1966.

(Under Article 32 of the Constitution of India for enforcement

of the Fundamental Rights)

778 SUPREME COURT REPORTS [1967] 2 S.C.R.

/11 Writ l'etitio11 No. 153 of 1966. ;.

R. V. S. Mani. S. K. Meflta and K. L. Mehta, for the Peti­

tioners.

Niren De, Additional Solicitor-General of India, and R. N

Sachthey, for the Respondents.

Niren De, Additional Solicitor-General of India, G. R. Raja­

gopal, and R. H. Dhcbar, for Intervener No. I.

S. D. Banerjee, Adl'Ocate-Gencral for the State of West Bengal,

B. S~1. and /'. K. Bose, for Intervener No. 7..

B

Lal Narain Sinlla, Advocate-General for tlie State of Bihar,

Bajrani: Sa/za, M. M. Gajadhar, K. M; K. Nair, D. P. Singh, C

.W. K. Ramanwrt/1i, R. K. Garg, S. C. Aganva/a and G.D. Gupta.

for Intervener No. 3.

Mohan Kumaramangalam. Advocate-Genera/ for 1/1e State of

Madras, B. Ramanwrthi and A. V. Rangam, for Intervener

~o. 4.

V. D. Mahajan and R. H. Dhebar, for Intervener No. 5.

K. L. Mis/mt, Advocate-Ge11eral for the State of Uttar Pradesh,

and 0. P. Rana, for Intervener No. 6.

V. A. Seyid Muhamad, A dvocatc-General for tlie State of

Kera/a, B. R. L. Iyengar, A. G. Pudissery, fo~ Intervener No. 7.

Na1111i1 Lal, for Intervener No. 8.

I(_ B. Mehta, for Intervener No. 9.

P. Ram Reddy and T. V. R. Tataclwri, for Intervener No. 10.

M. C. Stea/rad, 11. R. L. Iyengar and R.H. Dhebar, for Intcr-

\'encr No. 1 I.

R. Thiagarajai:, for Intervener No. 12.

D. N. Mukherje.:, for Intcrv.:ners Nos. 13 a'1d 19 to 21.

E. Udayaramam, S. S. Dalal and D. D. Sharma, for Inter-

D

E.

\'Cner~ Nos. 14 and IS. G

R. K. Garg, D. P. Singh, M. K. Ramamurthi, S. C. Aganva/a,

G. n. Gupta and K. M. K. Nair, for Intervener No. 16.

} . Parasara11 and K. R. Chaudhuri, for Intervener No. 17.

IJasudev Prasad, K. Parasaran and K. R. Chaudhuri, for

Intervener No. 18.

H

Basudev

Prasad, K. Rajendra Chaudhuri, K. R. Chaudhuri

and S. N. Prasad, for Interveners Nos. 22 to 24.

A

B

D

E

F

G

H

GOI:AKNATH V. PUNJAB

In Writ Petition No. 202 of 1966.

M. K. Nambyar, K. B. Jinaraja Hegde, N. A. Subramaniam,

Bhuvanesh Kumari, 0. C. Mathur, J. B. Dadachanji and Ravin­

der Narain,

for the Petitioner.

H. R. Gokhale, B. R. G. K. Achar, R. H. JJhebar, R. N.

Sachthey and

S. P .. Nayyar, for Respondent No. I.

Niren De, Additional So/:citor-Genera/, N. S. Bindm and

· R. N. Sachthey, for Respondent No. 2.

A. K. Sen, F. S. Nariman, M. L. Bhakte, S. I. Thakere, J.B.

Daclachanji, 0. C. Mathur and Ravinder Narain, for l11tervener

No. I.

N. A. Palkhiwala, F. S. Nariman, M. L. Bhakte, D. M. Popat,

0. P. Malhotra, J. B. Dadachanji, 0. C. Mathur and Ravinder

Na rain, for Intervener No. 2.

D. M. Parulekar, B. Dutta. J. B. Dadacha11ji, 0. C. Mathur

and Ravinder Narain, for Intervener No. 3.

in Writ Petition No. 205 of 1966.

M. K. Nambyar, K. B. Jinaraja Hegde, N. A. Subramaniam,

Bhuvanesh Kumari, 0. C. Mathur, J. B. Dadachanji and Ravin­

der Narain,

for the Petitioner.

H. R. Gokhale, B. R. G. K. Achar, R.H. Dhebar and

S. P.

Na;vyar, for Respondent No. I.

S. G. Patwardhan, D. M. Paru/ekar, B. Dutta, S. K. Dhelika,

J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for th~

Intervener.

[The Judgment of SUBBA RAo, C.J., SHAH, SIKRI, SHELAT

and VAIDIALINGAM, JJ. was delivered by Su1!BA RAO, C.J.

According to this

Judgment-(i) the power to amend the

Co-­

stitution is not to be found in Art. 368 but in 'ts. 245, 246 and

248 read with Entry 97 of List

I; (ii) the amending power

can­

not be used to abridge or take away the fundamental rights

guaran~eed in Part III of the Constitution; (iii) a law amending

the Constitution

is

"Law" within the meaning of Art. 13(2) and

(iv) the First, Fourth and Seventeenth Amendments though

they abridged fundamental righ's were valid in the past

on the

bas:s of earlier decisions of this Court and continue to be valid

for the future. On the application of the doctrine of "prospective

over-ruling", as enunciated in the judinnent, the decision will have

only prospective operation and Parliament will have no power

to abridge

or take away Fundamental Rights from the date of the

judgment.

The Judgment of

WANCHOO, BHARGAVA and MITTER, JJ. was

delivered by WANCHOO, J. According to this Judgment (i) the

780 SUPREME COURT REPORTS (1967] 2 S.C.R.

power of amending the Constitution resides in Art. 368 and not

in Arts. 245, ~46 and 248, read with Entry 97 of List I; (ii) there

are no restrictions on tne power if the procedure in Art. 368

is

followed and all the

Parts of the Constitution including Part III

can be amended, (iii) an amendment

of the Constitution is not "law" under Art. 13(2); and (iv) the doctrine of "prospective

overruling" cannot be applied in India.

HIDAYATULLAH, J. delivered a separate judgment agreeing

with SUBBA RAO, CJ. on the following two points: (i) that the

power to amend the Constitulion cannot be used to abridge

or

take away fundamental rights; and (ii) that a

law amending the

Constitution is "law" under Art. 13 (2). He agrees with W ANCHOO,

J. that the power to amend does not reside in Arts. 245 and 248

read wi!h Entry 97

of List I.

Art. 368, according to him, is sui generis and procedural and

the procedure when correctly followed, results in

an

.imendment. He does

not rely on the doctrine of "prospecti"e

overruling". As regards the First, Fourth and Seventh Amend­

ments, these having long enured and been acquiesced in, he does

no! treat the question

of their validity as

being before him. As

regards the Seventeenth Amendment he finds sufficient support for

it in the Constitution

as amended by the First, Fourth and Seventh

Amendments and holds that the new definition of

"estate", intro­

duced by the Amendment, though it is "law" under Ari. 13 (2)

and is an inroad into fundamental rights, is beyond the reach of

the courts because it fal.Is within the word "law" in Arts. 31 ( 1),

(2), 2A and 31A(I ). He, however, declares sec'.ion 3 of the

Seventeenth Amendment Act ultra vires the amendin

6

process as

an ille:;itimate exercise of the amending power.

BACHAWAT and RAMASWAMt, JJ. delivered separate judg­

ments concurring with WANCHOO, J.]

Subbarao, C.J. These three writ petitions raise ·he important

question

of the validity of the Constitution (Seventeenth

Amend­

ment) Act, 1964.

Writ Pe!ition No. 153 of 1966, is filed by the petitioners

therein against the State of Punjab and the Financial Commis­

sioner, Punjab. The petitioners are the son, daughter and grand­

daughters of one Henry Golak Nath. who died on July 30, 1953.

The Financial Commissioner, in revision against the order made

by the Addi'ional Commissioner, Jullundur Division, held by an

order dated January 22, 1962 that an area

of 418 standard acres

and

9! units was surplus in the hands of the petitioners under the

provisions

of the

Punjab Security of Land Tenures Act X of 1953,

read with

s. I

0-B thereof. The pe!itioners, alleging that the rele­

vant provisions of the said Act whcreunder the said area was

A

B

c

D

E

'

F

G

II

B

c

D

E

F

G

H

GOLAKNATH v. PUNJAB (Subba Rao, C.J.) 781

declared surplus were void on the ground that they infringed their

rights under

els. ( f) and ( g) of Art. 19 and Art. 14 of the Con­

stitution,

filed a writ in this Court under Art. 32 of the Constitu­

tion for a direction that the Constitution (First Amendment) Act,

1951, Constitution (Fourth Amendment) Act, 1955, Constitution

(Seventeenth Amendment) Act, 1964, insofar as

they affected

their fundamental rights were unconstitutional and inoperative

and for a direction that

s.

10-B of the said Act X of 1953 was

void as violative of Arts. 14 and 19( 1 )(f) and (g) of the Con­

stitution.

Writ Petitions Nos. 202 and 203 of 1966 were filed by differ­

ent petitioners under Art.

32 of the Constitution for a declaration

that the Mysore Land Reforms Act (Act

10 of 1962) as amend­

ed

by Act 14 of 1965, which

fixed ceilings on land holdings and

conferred ownership, of surplus lands on ter.ants infringed Arts.

14, 19 and 31 c.f the Constitution and, therefore, was unconstitu­

tional and void.

The States of Punjab and Mysore, inter alia, contended that

the said Acts were saved from attack on the ground that they in-

. fringed the fundamental rights of the petitioners by reason of the

Constitution (Seventeenth Amendment) Act, 1964, which,

by

amending Art. 31-A of the Constitution and including the said

two Acts in

the 9th Schedule thereto, had placed them beyond

attack.

In Writ Petition

No. 153 of 1966, 7 parties intervened.

In

Writ Petition No. 202 of 1966 one party intervened. In addi­

tion, in the first petition, notice was given to the Advocates Gene­

ral of various States. All the learned rounsel appearing for the

parties, the Advocates General appearing for the States and the

learned . counsel for the interveners have placed their respective

viewpoints exhaustively before

us. We are indebted

'.o all of

them for their thorough preparation a,d clear exposition of the

difficult questions of

law that were raised in

the said petitions.

At the outset it would be convenient to place briefly the resJ.!c­

tive contentions under different heads : ( 1) The Constitution is

intended to be permanent and, therefore, it cannot be amended in

a way which would injure, maim or destroy its indestructible

· character. (2) The word "amendment" implies such an addition

or change within the lines of the original instrument

as will effect

an improvement or better carry out the purpose for which it

wa'

framed and it cannot be so construed as to enable the Parliament

to destroy the permanent character of the Constitution.

(3) The

fundamental rights are a part of the basic structure of the Consti­

tution and, therefore, the said power

ca": be exercised only to

preserve rather than destroy the essence of those rig!its. ( 4) The

limits on the power to amend are implied in Art. 368, for the

782 SUPREME COURT REPORTS ( 196 7] 2 S.C.R.

expression "amend" has a limited meaning. The wide phraseo­

logy used in the Constitution in other Articles, such as "repeal"

ilnd "re-enact" indicates that art. 368 only enables a modification

of the Articles within the framework of the Constitution and not

a destruction of them. ( 5) The debates in the Constituent Assem­

bly, particularly the spc~ch <.l Mr. Jawahar Lal Nehru, the first

Prime Minister of India, and the reply of Dr. Ambedkar, who

piloted the Bill disclose ~!early that it wa' never the intention of

the makers of the Comlitution by putting in Art. 368 to enable

the Parliament lo repeal the fundamental rights; the circumstances

under which the ame11dment moved by Mr. H. V. Karnath, one of

the members

of Constituent Assembly, was withdrawn and An. 368

was finally adopted. support

th.z contention that amendment of

Part III is outside tlie scope of Ar'. 368. ( 6) Part III of the

Constitution

is a self-contained Code and its provisions are

~las­

ric enough to m~et all reasonable requirements of changing situa­

tions. ( 7 i The power to amend is sought to be derived 1. Jm

three •ources. name!\', ( i) bv implication under Art. 368 it~elf;

the procedure to amend culmina'ing in the amendment of the

Constitu· ion necessarily implie> that power. (ii) the power and

the limits of the power to amend arc implied in the Articles sought

to be amended, and (iii) Art. 368 only lays down the procedure

to amer.d, but the power to amend is only the legislative power

conferred on the Parliament under Arts. 245, 246 and 248 of the

_Constitu!ion. (

8) The definition of

"law" in Art. 13 ( 2) of the

Constitu'.ion includes every branch of law, statutory, constitu­

tional, etc., and therefore, the power to amend in whichever

branch it

may

be classilie:I, if it takes away or abridges funda­

mental rights would be void thereunder. (9) Ti.e impugned

amendment detracts from the jurisdiction

of

tlie High Court under

An. 226 of the Constitution and also the legislative powers of the

S.tates and therefore it falls within the scope of the proviso to

An. ~68.

Th.~ said summary. though not exhaustive. broadly gives the

various nuances

of the conter.tions raised by the learned counsel,

who

question the validity of the 17th Amendment. We have not

noticed the other arguments of Mr. Nambiar, which are p<-.culiar

to the Writ Petition No. 153 of 1966 as those questions do not

arise for decision. in lhe view

we are taking on the common question>.

On behalf of the Union and the States the following points

were pres!'ed : (I ) A Constitutional amendment is made in exer­

cise of the soverei1m pow~r and not legislative power of Parlia­

ment and. therefore. it partakes the quality and character of the

Constitution itself.

(2) The real distinction is between a rigid

and a flexible Constitution.

The distinction is

ba~d upon the

express limits

of the amending power. (3) The provisions of Art.

A

B

c

D

E

F

G

H

•

A

B

c

D

E

F

G

H

GOLAKNATH v.

PUNJAB (Subba Rao, C.J.) 783

368 are clear and unequivocal and there is no scope. for invoking

implied limitations on that power: further the doctrine of implied

power has been rejected by the American courts and jurists. (

4)

The object of the amending clause in a flexible Consetitution is to

enable the Parliament to amend the Constitution in

order to

express the

will of the people according to the changing course

of events and

if

&mending power is restricted by implied limita­

tions, the Constitution itself might be destroyed by revolution.

Indeed,

it is a

;afety valve and an alternative for a violent change

by revolution.

(5) There are no basic and non-basic features of

the Constitution; everything

in the Constitution is basic and it can

be amended in order

to help the future growth and progress of

the country. (

6) Debates in the Constituent Assembly cannot be

relied upon for construing Art. 368 of the Constitution and even

if they can be, there is nothing in the debates to prove positively

that fundamental rights were excluded from amen 'ment.

(7) Most

of the amendments are made out of political necessity: they

in·­

volve questions, such as, how to exercise power, how to make the

lot of the citizens better and the like and, therefore, not being

judicial questions, they are outside the court's jurisdiction.

(8)

The language of Art. 368 is clear, categorical, imperative and

universal; on the other hand, the language of Art.

13(2) is such

as to admit qualifications or limitations and, therefore, the Court

must construe them

in such a manner as that Article could not

control Art. 368.

(9) In order to enforce the Directive Principles

the Constitution

was amended from time to time and the great

fabric of the Indian Union has been built since

1950 on the basis

that

the Constitution could be amended and, therefore, any

rever­

sal of the previous decisions would introduce economic chaos in

our country and that, therefore, the burden is very heavy upon

the petitioners

to establish that the fundamental rights cannot

be amended under Art. 368 of the Constitution. (

10) Art. 31-A

and the 9th Schedule

do not affect the power of the High Court

under Art. 226 or the legislative power of the

States though the

area of their operation

is limited and, therefore, they do not fall

within the scope of the proviso

to Art. 368.

The aforesaid contentions only

repre,ent a brief summary of

the elaborate arguments advanced by :earned counsel.

We shall

deal in appropriate context with the other points mooted

b.efore·

ils.

It will be convenient to read the material provisions of the

Constitu'ion at this stage.

Article 13(1)

( 2) The State shall not make any law which takes

away ar abridges the rights conferred by this part and

any

law made in contravention of this clause shall, to

the extent of the contravention, be void.

784 SUPREMF. COliRT REPORTS [1967] 2 S.CR.

(3) In this article, unless the context otherwise

rcqmres,-

( a) "law" includes any Ordinance, order, bye-law,

rule regulation, notification, custom

or usage

having in the territory of India the force of law.

A rticlc 3 I-A( l). Notwithstanding anything

cont;_ined in

article 13, no law providing for,

(a) the acquisition by the State of any estate or

of any rights therein or the extinguishment or modi­

fication of any such· rights,

shall

be deemed to be void on the ground that it

b

inconsistent with, or takes away or <.;,ridges any of the

rights conferred by article 14, article 19

or article 31.

(2) (a) the expression

"estate" shall, in relation to

any local area, have the same meaning as

that expression or its local equivalent has

in the existing law relating to land tenure

in force in that area and shall also include,

(ii) any land held under ryotwari settlement,

(iii) any land held

or let for purposes of agricul-

ture

or for purposes ancillary thereto ..... .

Article 31-B. Without prejudice to the generality

of the provisions contained in article 31-A, none of the

Acts and Regulations specified

in

the Ninth Schedule

nor any of the provisions thereof shall be deemed to be

void, or ever to have become void, on the ground that

such Act. Regulation

or provision is inconsistent with,

or takes away or abridges any of the rights conferred

by, any

provhions of this Part, and notwith9tanding any

judgment decree

or order of any court or tribunal to the

contrary, each of the said Acts and Regulations shall, subj~ct to the power of any compe'.ent Legislature to

repeal or amend it, continue in force.

In the Ninth Schedule to the Constitution the Mysore Land

Reforms Act, 1961, (Mysore Act IO of 1962) is included as

item

51 and the

Punjab Security of Land Tenures Act, 1953

(Punjab Act 10 of 1953) is included as item 54. The definition

of "estate" was amended and the Ninth Schedule was amended

by includinq therein the said two Acts by the Constitution

(Seventeenth Amendment) Act, 1964.

A

B

c

D

E

F

G

H

A

B

c

D

E

F

G

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OOLAKMATH v. PUNJAB (Subba Rao, C.J.) 785

The result of the said amendments is that both the said Acts

dealing with estates, within their wide definition introduced by

the Constitution (Seventeenth Amendment) Act, 1964, having

been included in the Ninth Schedule, are placed beyond any

attack on the ground that their provisions are inconsistent with

or take away or abridge any of the rights conferred by Part Ill

of the Constitution. It is common case that if the Constitution

(Seventeenth Amendment) Act, 1964, was constitutionally valid,

the said Acts could not be impugned on any of the said grounds.

The question of the amendability of the fundamental rights

was considered by this Court earlier in two decisions, namely.

Sri Sankari Prasad Singh Deo v. Union of India and State of

Bi.liar(') and in Sajjan Singh v. State of Rajasthan(').

In the former the validity of the Constitution (First Amend­

ment) Act, 1951, which inserted, inter alia, Arts. 31-A and 31-B

in the Constitution,

was questioned. That amendment was made

under

Art. 368 of the Constitution by the Provisional Parliament.

This Court held that Parliament had power to amend

Part III of

the Constitution. The Court came to that conclusion on two

grounds, namely, ( 1) the word "law" in Art. 13 (2) was one

made in exercise of legislative power and not constitutional law

made in exercise of constituent power; and

{ii) there were

two

articles (Arts. 13(2) and 368) each of which was widely phrased

and, therefore, harmonious construction required that one should

be so read as to be controlled

iind qualified by the other, and

having regard to the circumstances mentioned in the judgment

Art.

13 must be read subject to Art. 368. A careful p~rusal of

the judgment indicates that the whole decision turned upon an

assumption that the expression "law" in Art. 13(2) does. not

include constitutional law and on that assumption

an attempt

was made to harmonise Article 13 (2) and 368 of the Constitution.

The decision in

Sajjan Singh's case(') was given in the con­

text of the question of the valid" y of the Cons•itution (Seven­

teenth Amendment) Act, 1964. Two questions arose in that

c~se: ( 1) Whether the amendment Act insofar it purported to

take away or abridge the rights conferred by Part III of the Con­

stitution fell within the prohibition of Art. 13(2) and (2)

Whether Articles 11-A and 31-B sought to make chane-es in

Arts. 132, 136 or 226 or in any of the lists in the Seventh Schedule

and therefore the requirements of the proviso to Article 368 had

to be satisfied. Both the Chief Jus~ice and Mudholkar. J. made

it clear that the first coPtention was not raised before the Court.

The learned counsel appearing for both the parties accepted the

correctness of the decision in

Sankari

Prasad's case(') in that

(l) [1952] S.C.R. 89. 105. (2) [1965] I S.C.R. 933. 946, 950, 959, 961, 963

786 SUPREME COURT REPORTS (1967] 2 S.C.R.

reg_ard. Yet Gajendragadkar, C.J. speaking for the majority

agreed with the reasons given in Sa11kari Prasart.i' case(') on the

tirst question and Hidayatullah and Mudholkar,

JJ. expressed

their dissent from the said view.

Bue

all of them agreed, though

for different reasons on the second question. Gajendragadkar,

C.J. speaking for himself, Wanchoo and Raghubar Dayal, JJ.

rejected the contention that Art. :168 did not confer power on

Parliament to take away the fundamental rights guaranteed oy

Part Ill. When a ;uggestion was made that the decision in the

aforesaid case should

be reconsidered and reviewed, the learned

Chief Justice though

he conceded that in a case where a decision

had a significant impact on the fundamental rights of citizens,

the

Court would be inclined to review its earlier decision in the inte·

rests of tt.e public good, he did not find considerations of sub·

stantial and compelling character to do so in that case. But after

referring to the reasoning given

in

Sa11kari Pra«ad's case(

1

) the

learned Chief Justice observed :

"In our opinion, che expression "am.~ndment of the

Constitution" plainly and unambiguously means amend·

men! of all the provisio1is of the Constitution."

Referring to Art. 13 ( 2), he restated tl:e same reasoning found in

the earlier decision and added that if it was the intention

of the

Constitution-makers to save fundamental rights from the

amend­

ing process they should have taken the precaution of making a

clear provision

in that regard. Jn short, the majority, speaking

through Gajendragadkar,

C.J. agreed that no case had been

made out for reviewing the earlier decision

and practically

accepted

the reasons given in the earlier decision. Hidayatullah

J .. speaking for himself, observed:

'

"But I make it clear that I must not be understood

to have subscribed to the view that the word "law" in

Art.

13(2) does not control constitutional amendments.

I reserve my opinion on

that case for I apprehend that

it depends

on how wide is the word

"law" in that Article."

After giving his reasons for doubting t~1e correctness of the reason-

ing given in Sa11kari Prasad's case('), the learned Judge

concluded thus :

"I would require stronger reasons than those given

in Sa11kari Prasad's case (

1

) to make me accept the

view that Fundamental Rights were not really funda·

mental but were intended to be within the powers of

amendment in common with the other parts of the Con·

stitution and v:ithout the concurrence of the States."

111 (19l!) S.C.R. R9.

A

B

c

D

E

F

G II

OOLAKNATH v. PUNJAB (Subba Rao, C.J.) 787

A The I.earned Judge continued :

B

c

D

E

F

G

H

"The Constitution gives so many assurances in Part

Ill that it would be difficult to think that they were the

playthings of a special majority."

Mudholkar, J. was positive that the result of a legislative action of

a legislature could not be other than "law" and, therefore, it

seemed to him that the fact that th.~ legislation dealt with the

amendment of a provision of the Constitution would not make

its results anytheless a "law". He further pointed out that Art. 368

did not say tha'. whenever Parliament made an amendment to the

Constitution

it assumed a different capacity from that of a

consti­

tuent body. He also brought out other defects in the line of

reasoning adopted in Sankari Prasad's case('). It will, there·

fore, be seen that the correctness of the decision in Sankari Pra­

sad' s case(') was not questioned in Sajjan Singh's case(

2

).

Though it was not questioned, three of the learned Judges agreed

with the

view expressed therein, but two learned Judges were

inclined

to take a different view. But, as that question was not

raised,

th.e minority agreed with

the conclusion arrived at by the

majority· on the question ·whether the Seventeenth Amendment

Act was covered by the proviso to Art. 368 of the Constitution.

The conflict between the majority and the minority in

Sajjan

Singh's

case(

2

)

falls to be resolved in this case. The said conflict

and the great importance of the question raised

is the justification

for the.Constitution of the larger Bench. The decision in

Sankari

Prasad's

case(') was assumed to be correct in subsequent decisions

of this Court. See S. Krishnan v. State of Madras(

3

), The State

of West Bengal v. Anwar All Sarkar(') and Basheshar Nath v. The

Commissioner

of

Income-tax, Delhi and Rajasthan('). But noth-

ing turns upon that fact, as the correctness of the decision was not

questioned in those cases.

A correct appreciation of the scope and the place

of

fµnda-./

mental rights in our Constitution will give us the right perspective

for solving the problem presented before

us. Its scope cannot be

appreciated unless we have a conspectus of the Constitution, its

objects and its machinery to achieve those objects.

The objective

sought to be achieved by the

Constitution is declared in sonorous

terms in its preamble which reads :

"We the people of India having solemnly resolved to

constitute India into a Sovernign, Democratic, Republic

and to secure to all its citizens justice

.. liberty ..

equa­

lity .. and fraternity .. "

(I) [1952J S.C.R. 89 (2) [1965! I S.C.R.933.

(3) [1951] S.C.R. 621 at page 652. (4) [1952] S.C.R. 284, 366.

(5) [1959] Supp, I S.C.R. 528, 563.

788 SUPREME COURT REPORTS (1967] 2 S.C.R

It con'.ains m a nutshell. its ideals and its aspirations. The 1're­

amble is not a platitude bu~ the mode of its realisation is worked

out in detail in the Constitution. The Consti'.utlon brings imo

existence different constitutional entities, namely, the Union, the

States and the Un:on T~rritories. It creates three major ins:rn­

ments of power, namely. the Legislature. the Executive and the

Judiciary.

It demarcates their jurisdiction minutely and expects

them to exercise their respective powers without overstepping

their limits. They should function within the spheres

ailotred to

them. . Some powers overlap and some are supers, ded during

emergencies.

The mode of resolution of conflicts and conditions

for supcrsession are also prescribed. In short, the scope

of the

power and the manner of its exercise are regula'ed by law.

No

authority created under the Constitution is supreme; the

Consti­

tution is supreme; and all the authorities function under

the supreme law of the land.

The rule of Jaw under

the Constitution has a glorious content. It embed.es the

modem concept of law evolved over the centuries. It empowers

the Legislatures to make laws

in respect of :na'ters enumerated

in the 3 Lists

annexed to Schedule VII. In Part IV of the Con­

stitution. the Directive Principles of State Policy are laid down. It

enjoins it to bring about a social order in which justice, social,

economic and

political-shall inform all the in'titutions of

national life. It directs it to work for an egaJ:tarian society

where

there is no concentrat'on of wealth, where there is plenty, where

there

is equal opportunity for all. to education, to work, to

liveli­

hood. and wh.~re there is social justice. Bi". having regard to the

past history

of our country, it could not imp

1

icitly believe the

representatives

of the peonle. for uncontrolled and

unrestrict~d

power might lead to an authoritarian State. It, therefore, pre­

serves the natural rights against the State encroachmt.mt and con­

stitutes the higher judiciarv of the State as the sentinel of the said

rights and the balancing wheel between the rights. subject

to social control. In shor'. the fundamental rights, subject to social

control, have been incorporated in the rule of law. That is

brought about bv an interesting proce<s. In the implementation

of the Directive Princioles. Parliament or •he Legislature of a

State makes laws in respect of matter or matters al'otted to it.

But •he higher Judiciary test< their validity on certain objective

criteria. namely.

(i) whether the appropriate Legislature

has the

Ie.2islative competency to make the law; (ii) whether the said law

infringes any of the fundamental rights: (iii) even if it infringes

the fr.~edoms under Art. 19. whether the infringement only

amounts to "reasonable restriction" on such rights in "public

interest." Bv this oroc.:ss of scruti~y. the cour' maintains the

validity

of

onlv such laws as keep a just balance between freedoms

and social control.

The dutv of reconciling fundamental rights

in Art. 19 and the laws

of social control is cast upon the courts

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GOLAKNATH V. PUNJAB (Subba Rao, C.l.) 789

and the touchstone or the standard is contained in the said two

expressions. The standard is an elastic one; it varies with time,

space and condition. What

is reasonable under certain

circum­

stances may not be so under different circumstances. The

constitutional philosophy of

law is reflected in

Parts III and IV

of the Constitution. The rule of law under the Constitution

serves the needs of the people without unduly infringing their

rights.

It recognizes the social reality and tries to adjust itself

to it from time to time avoiding the authoritarian path.

Eve::y

institution or political party that functions under the Constitution

must accept it; otherwise it

has no place under the Constitution.

Now, what are the fundamental rights ? They are embodied

in

Part III of the Constitution and they may be classified thus :

(i) right to equality, (ii) right to freedom, (iii)right against ex­

ploitation, (iv) right to freedom of religion, (v) cultural and

educational rights, (vi) right

to property, and (vii) right to

con­

stitutional remedies. They are the rights of the people preserved

by our Constitution. "Fundamental rights" are the modern name

for what have been traditionally known

as

"natural rights". As

one author puts : "they are moral rights which every human being

everywhere at

all times ought to have simply because of the fact

that in contradistinction with other beings, he

is rational and

moral." They are the primordial rights necessary for the develop­

ment 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 the minorities, untouchables and other

backward communities, in such rights.

After having declared the fundamental rights, our Constitution

says that all laws in force in the territory. of India immediately

before the commencement of the Constitution, insofar

as they are inconsistent with the said rights, are, to the

extent of

such inconsistency, void. The Constitution also enjoins

the

State not to make any law which takes away or abridges the

said rights and declares such

laws, to the extent of such

inconsis­

tency, to be void. As we have stated earlier, the only limitation

on the freedom enshrined in Art. 19 of the Constitution

is that

imposed

by a valid law

operating as a reasonable restriction in

the interests of the public.

It will, therefore, be seen that fundamental rights are given

a transcendental position under our Constitution and are kept

H beyond the reach of Parliament.

At the

same· time Parts III and

IV constituted an integrated scheme forming a self-contained

code. The

scheme is made so elastic that all the Directive

Prin­

ciples of State Policy can reasonably be enforced without taking

L 3 Sup. CJ/67-5

79() SUPREME COURT REPORTS (1961J 2 S.C.R.

away or abridging the fundamental rights. While recognizing

the immutability of fundamental rights, subject to social control,

the Constitution itself provides for the suspension

or the

modifi­

cation of fundamental rights under specific circumstances, for

instance, Art. 33 empowers Parli;unent to modify ihe rights con­

ferred by Pan III in their application to the members of t!Je armed

forces, Art.

34 enables it to impose restrictions on the rights

con­

krred by the said parts while martial law is in force in an area,

Art. 35 confers the power

on it to make laws with respect to an/

of the matters which under clause (3) of Art. 16, Clause (3) of

Art. 32, Art. 33 and Art. 34 may

be provided for

by law. The

11011-obstante clause with which the last

article opcm makes it clear that all th~ other provisions of the

Constitution arc 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 gua­

ranteed right. Even during grave emergencies Art. 358 only

'uspends the provisions of Art. 19; and Art. 359 enables the

President by order to declare the right to move any court for the

enforcement

of such of the rights conferred by

Part III as may be

mentioned in that order to be suspended; that is to say, even during

emergency. only Art. 19 is suspended temporarily and all other

rights arc untouched except those specifically suspended by the

President.

In the Uook "'Indian Constitution~):.'merstone of a Nation"

by Granville Austin, the scope, origin and the object of funda­

mental rights have been graphically stated. Therein the learned

author says :

" ...... the core of the commitment to the social

revolution lies in Parts III and IV, in the Fundamental

Rights and in the Directive Principles of State Policy.

These arc the conscience of th.:: Constitution."

Adverting to the necessity for incorporating fundamental rights in

a Constitution, the learned author says :

"That a declaration of rights had assumed such im­

portance was not surprising; India was a land of com­

munities, of minorities, racial, religious, linguistic, social

and caste.

For India to become a state, these minorities

had to agree to

be governed both at the centre and in the

provinces l:y

fellow Indfan-members, perhaps, of

another minority-and not by a mediatory third power.

the British. On both psychological and political

11rounds, therefore, the demand for writteli righls--liince

nghts would provide tangible safeguards, against op­

pression-proved overwhelming."

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GOLAKNATH v. PUNJAB (Subba Rao, C.I.) 791

Motilal Nehru, who presided over the Committee called for by

the Madras Congress resolution, in May, 1928 observed in his

report:

"It is obvious that our first care should be to have

our Fundamental Rights guaranteed in a manner whicl'.

will not permit their withdrawal under any circum­

stances ...• Another reason why great importance attach­

ed to a Declaration of Rights

is the unfortunate exist­

ence of communal differences in the country. Certain

safeguards are

necessary to create and establish a sense

of security among those who look upon each other with

distrust and suspicion.

We could not, better secure the

full enjoyment of religious and communal rights to all

communities than

by including them among the basic

principles of the Constitution."

Pandit Jawaharlal Nehr , on April

30, 194 7 in proposing for

the adoption of the Interim Report on Fundamental Rights, said

thus:

"A fundamental right should be looked upon, not

from the point of view of any particular difficulty of

the moment, but

as something that you want to make

permanent

in the Constitution. The other matter

should

be looked upon-however important it might be-not

from this permanent and fundamental point of view,

but from the more temporary point of view."

P~ndit J awaharlal Nehru, who was Prime Minister at that time

and

who must have had an effective voice in the framing of the

Constitution, made this disinction beween fundamnetal rights

and other provisions of the Constitution, namely,

the former

were permanent and the latter were amendable. On September

18, 1949 Dr. Ambedkar in speaking on the amendment proposerl

by Mr. Karnath to Art. 304 of the Draft Constitution correspond­

ing to the present Art. 368, namely, "Any provision of this Con­

stitution may be amended, whether by way of variation, addition

or repeal,

in the manner provided in this

article", said thus :

"Now, what is it we do? We divide the articles of

the Constitution under three categories. The first cate­

gory is the one which consists of articles which can be

amended

by Parliament by a bare majority. The second

set of articles are articles which require two-thirds

majority.

If the future Parliament wishes to amend any

particular article which

is not mentioned in

Part III

or article 304, all that is necessary for them is to have

two-thirds majority. Then they can amend it."

792 SUPREME COURT RBPOB.TS [1967) 2 S C.R.

Therefore, m Dr. Ambedkar"s view the fundamcn:al rights were

~o important that :hey could not he amended in Ille manner pro­

vided by Art. 304 of the Draft Constitution, which correspond'

to lhe present Art. 368.

We have referred

lO

:he speeches of Pandit Jawaharlal Nehru

and Dr. Ambedkar nol with a view to interpret the provisions

of Art. 368, which

we propose to do on its own tenns, but only

to notice the transcendental character given to

the fundamental

rights

by two of the important architects of the Constitution.

This Court also no:iccd the paramountcy of the fundamental

rights in many decisions.

In

A. K. Gopa/an v. Staie of Mad­

riu(

1

)

they are described as

"paramount", in State of Madras v.

Sm1. Champakam Dorairajan(2) as "sacro-sanci'', in Pandit

M. S. M. Sharma v. Shri Sri Krishna Sinha(

8

)

as

"rights reserved

by the people", in Smt. Ujjam Bai v. State of VIiar Pradesh(') as

"inalienable and inviolable" and in other cases as "transcenden­

tal". The minorities regarded them as the hf'drock of their political

existence a11d the majority considered them as a guarantee for

their way of life. This, however, does not mean that the problem

is one of mere dialectics. The Constitution has given by its scheme a place of permanence to the fundament .. l freedoms. In

giving to themselves the Constitution, the people have reserved

the fundamental freedoms to themselves. Article 13 merely in­

corporates that reservation. That Article is however not the

source of the protection o[ fundamenal righ's but the expression

of the reservation. The importance attached to the fundamental

freedoms

is so transcendental that a biil enacted by a unanimous

vote of all the members of both the Houses

is ineffective to

dero­

gate from its guaranteed exercise. It is not what the Parliament

regards

at a given moment as conducive to the public benefit. but

what Part III declares

pro•ected, which determines the ambit of

the freedom. The incapacity of the Parliament therefore in e~er­

cise of its amending power to modify, restrict or impair funda­

mental freedoms in Part III arises from the scheme of the Consti­

!ulion and the nature of the freedoms.

Briefly stated, the Constitution declares certain rights

as

fun­

damental rights, makes all the laws infringing the said rights

void, preserves only the laws of social control infringing the said

rights and expressly confers power on Parliament and the

President to amend or suspend them

in specified circumstances;

if

the decisions in Sankari Prasad's case(') and Sajjan Singh's

case(') laid down the correct law, it enables the same Parliament

to abrogate them with one stroke. provided the party in power

~inely or in cor.1bination with other parties commands the neces-

(t) [195<1] S.C.R. 88, 198. (2) (1951) S.C.R. 525.

(l) [1959] Supp, I S.C.R. 806. (4) [1963] I SC.R. 778

(5) [1952) S.C.R. 89, JOS. (6) (1965] S. C.R. 933.

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GOLAKNATH v.

PUNJAB (Subba Rao, C.I.) 793

sary majori:y. While articles of less significance would require

consent of the majority of the States, fundamental rights can be

dropped without such consent. While a single fundamental right

cannot be abridged or taken away by the entire Parliament unani­

mously voting to that effect, a two-thirds' majority can do away

with all the fundamental rights. The entire super structure built

with precision and high ideals may crumble at one false step.

Such a conclusion would attribute unreasonableness to the

makers

of the Constitution, for, in that event they would be speaking in

two voices. Such an intention cannot be attributed to the makers

of the Constitution unless the provisions of the Constitution com­

pel us to do so.

With this background Jet us proceed to consider the provisions

of Art. 368,

vis-a-vis Art. 13(2) of the Constitution.

The

first question is whether amendment of the Constitution

under Art. 368

is

"law" within the meaning of Art. 13(2). The

marginal no'e

to Art. 368 describes that article

as one prescril>­

ing the procedure for amendment. The article m terms only

pre~cribcs various procedural steps in the maiter of amendment:

it shall be initiated by the introduction of a bill in either House of

Parliament; it shall be passed

by the prescribed majority in both

the Houses; it shall then

be presented to the President for his

assent; and upon such assent the Constitution shall stand

amend­

ed. The article assumes the power to amend found elsewhere

and 'ays that it shall be exercised in the manner laid down there­

in. The argument that the completion of the procedural steps

culminates in the exercise of the power to amend may

be subtle

bui does not carry conviction.

If that was the intention of the

provisions, nothing prevented the makers of the Constitution from

stating that the Constitution may

be amended in the manner

suggested. Indeed, whenever the Constitution sought to confer a

special power to amend on any authority it expressly said so :

(See Art~. 4 and 392). The alternativ~ contention that the said

power shall be implied either from Art. 368 or from the nature

of the articles sought to be amended cannot be accepted, for the

simple reason that the doctrine of necessary implication cannot

be invoked if there

is an express provision or unless but for such

implication the article

will become otiose or nugatory. There is

no

ne:essity 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.

Uninfluenced by any foreign doctrines let

us look at the pro­

visions of our Constitution. Under Art. 245, "subject to the

provisions of the Constitution, Parliament may make laws for

the whole or any part of the territory of India ...... " Article 246

demarcates the matters in respect of which Parliament and State

794 SUPREME COURT RBPOllTS (1967] 2 S.C.R.

Legislatures may make laws. In the field reserved for Parliament

there is Entry 97 which empowers it to make laws in respect of

"any other matter not enumerated in Lists II and ill including

any tax not mentioned

in either of those

lists." Article 248 Cll­

prc&Sly states that Parliament has exclusive power to make any law

with respect to any matter not enumerated in the Concurrent List

or State List. It is, therefore, clear that the residuary power of

legislation is vested in Parliament. Subject to the argument

based upon the alleged nature of the amending power as under­

stood by jurists in other countries, which we shall consider at a

later stage,

it cannot be contended, anJ indeed, it was not

con­

tended, that the Cons!ituent Assembly, if it were so

minded, could no: have conferred· an express legislative

power on Parliament to amend the Consutution by ordi­

nary legislative process. Articles 4 and 169, and para 7

of the 5th Schedule and para 21 of the 6th Schedule have

expressly conferred such power. There

is, therefore, no inherent

inconsistency between legislative process and the amending

one.

Whether in the field of • constitutional law or statutory Jaw

amendment can be brought about only by law. The residuary

p<'Wer of Parliament, unless there is anything contrary in the

Constitution, certainly takes in the power to amend the Constitu­

tion. It is said that two Articles indicate the contrary intention.

As Art. 245, the argument proceeds, is subject to the provisions

of the Constitution, every Jaw of amendment will necessarily be

inconsistent with the articles sought to

be amended. This is

!In

argument in a circle. Can it be said reasonably that a law amend­

ing an article is inconsistent with the article amended ? If an

article of the Constitution expressly says that it cannot

be

amend­

ed, a law cannot be made amending it, as the power of Parlia­

ment to make a law is subject to the said Article. It may well

be that in a given case such a limitation may also necessarily be

implied. The limitation in Art. 245 is in respect of the power to

make a

Jaw and not of the content of the Jaw made within the scope

of its power. The second criticism is based upon Art. 392 of

the Constitution.

That provision confers power on the President

to

temove difficulties; in the circumstances mentioned in that

provision, he

can by order direct that the Constitution

shall dur­

mg such period as may be specified in that order have effect sub­

ject to such adaptations, whether by way of modification, addition

or omission, as he may deem to be necessary or Cllpedient The

argument is that the President's power, though confined to a

temporary period, is co-extensive with legislative power and if

the power to amend is a legislative power it would have to be

held that the President can amend the Constitution in terms of

Art. 368. Apart from the limited scope of Art. 392, which is

intended only for the purpose of removing difficulties and for

bringing about a smooth transition, an order made by the Presi-

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GOLAKNATH v. PUNJAB (Subba Rao, C.l.) 795

dent cannot attract Art. 368, as the amendment contemplated by

that provision can be initiated only by the introduction of a bill

in the Parliament. There

is no force in either of the two

criti­

cisms.

Further, there is intemal evidence in the Constit\ltion itself

which indicates that amendment to the Constitution is a "law"

within the meaning of Art. 245. Now, what is "law" under the

Constitution? It is not denied that in its comprehensive sense it

'.:icludes constitutional law and the law amending the Constitu­

tion is constitutional law. But Art. 13 (2) for the purpose of

that Article

gives an inclusive definition. It does not exclude

Constitutional

law. It prima facie takes in constitutional law.

Article 368 itself gives the necessary

clue to the. problem. The

amendment can

be initiated by the introduction of a bill; it shall

be passed by the two Houses; it shall receive the assent of the

President. These are well-known procedural steps in the process

of law-making : Indeed

this Court in Sankari Prasad's

case(')

brought out this idea in clear terms. It said "in the first place,

it is provided that the amendment must be initiated by the in­

iroduction of. a "bill in either House of Parliament" a familiar

feature of Parliament procedure (of Article 107 (I) which says

•A bill may originate in either House of Parliament"). Then, the

bill must be "passed in each House,"-just what Parliament does

when it is called upon to exercise its normal legisfative function

[Article 107(2)1; and finally, the bill thus passed must be "pre­

sented to the President" for his "assent", again a parliamentary

process through

which every bill must pass before it can reach the

statute-book, (Article 111).

We thus find that each of the

com­

ponent units of Parliament is to play its allotted part in bringing

about an amendment to

the Constitution. We have already

seen

that Parliament effects ainendments of the first class mentioned

above

by going through the same three-fold procedure but with

a simple majority. The fact that a different majority in the same

body is required for effecting the second and third categories of

amendments make the amending agency a different

body."

In the same decision it is pointed out that Art. 368 is not

a complete code in respect of the procedure. This Court said

"There are gaps in the procedure as to how and after what notice

a bill

is to be introduced, how it is to be passed by each House

and how the President's assent is to be obtained. Having

pro­

vided for the Constitution of a Parliament and prescribed a cer­

tain procedure for the conduct of its ordinary legislative busine~s

to be supplemented by rules made by each House {Article 118),

the makers of the Constitution must be taken to have intended

Parliament

to follow that procedure, so far as they may be

appli·

cable consistently with the express provision of Art. 368,

when they have entrusted to it the power of amending the Con-

ti) [1952) S. C.R. 89.

796 SUPREME COURT REPORTS [1967] 2 S.C.R.

>titution.'' The Hous.i oi the People made rules providing pro­

cedure for amendments, the same as for other Bills with the

addition of certain special provisions viz., Rules 155, 156, 157

and

158.

If amendment is intended to be something other than

law, the constitutional insistenc.: on the sai~ legislative process is

unneces.~ary. In short, amendment cannot be made otherwise

than

by following the legislative process. The

fact that there are

other cenditions, such as, a larger majority and in the ca>e of

articles mentioned in the proviso a ratification

by Legislatures is

provide<l. does not make the amendment anytheless a law. The

imposition of further conditions

is only a safeguard against hasty

action

or

3 protection to the States, but does not change the

Legislative character of the amendment.

This conclusion

is reinforced by the other articles of the

Constitution. Article 3 enables

Parliament by law to form new

States and alter areas. boundaries or tho names of existing States.

The proviso to that Article imposed two further conditions,

namely,

(iJ the recommendation of the

President, and (ii) in

the> circumstances mentioned therein, the views expressed by the

Legislatures. Notwithstanding the said conditions it cannot

be

suggested that the expression

"law" under the said Article is not

one made

by the Legislative process.

Under Art. 4, such a law

can contain provisions for amendment of Schedules

I and

IV

indicating thereby that amendments are only made by Legisla­

lative process. What is more, cl. (2) thereof introduces a fiction

to the affect that such a law shall not be deemed t.> be an amend·

mcnt to the Constitution. This shows that the amendment is law

and that but for the fiction it would bo an amendment within the

meaning of Art. 368. Article 169 which empowers Parliament

by law to abolish or crea:e Legislative Councils in States, para 7

of the 5th Sch,~dule and para 21 of the 6th Schedule which enable

Parliament by law to amend the said Schedules, also bring out

the two ideas that the amendment

is law made by legislative

pro­

ce~s and that but for the fiction introduced it would attract Article

368. That apart amendments under the said provisions can be

made by the Union Parliament by simple majority. That an

amendment is made only by legislative process with or without

conditions will

be clear if two decisions of the

Privy Council arc

considered ir. juxta-position. They are McCawley v. Thi!

King(') and The Bribery Commissioner v. Pedrick Rana·

singhe(').

The facts in McCaw/ey v. The King(') were these: In 1859

Queensland had been granted a Constitution in the term~ of an

Order

in Council made on June 6 of that year under powers

derived

by Her Majesty from the Imperial

Statute, 18 & 19 Viet.

(I) 119201A.C.691. (2) [1964] 2 W.L.R. 1301.

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GOLAKNATH v. PUNJAB (Subba Rao, C.J.) 797

c. 54. The Order in Council had set up a legislature for the

territory, consisting of the Queen, a Legislative Council

and a

Legislative Assembly, and the law-making power was vested in

Her Majesty acting with the advice and consent of the Council

and Assembly.

Any laws could be made for the

"peace, welfare

and good government of the Colony". The said legislature of

Queensland ;n the year

18 67 passed the Constitution Act of

that

year. Under that Act power was given to the said legisla­

ture to make laws for "peace, welfare and good Government of

rhe Colony in all cases whatsoever". But, under s. 9 thereof a

two-thirds majority of the Council and of the Assembly was

required

as a condition precedent to the validity of legislation

altering the constitution

of the Council. The Legislature,

there­

fore. had, except in the case covered by s. 9 of the Act, an un­

res'.ricted power to make laws. The Legislature passed a law

which conflicted with one of the existing terms of the Constitution

Act. Lord Birkenhead, L.C., upheld the law, as the Constitu­

tion Act conferred an absolute power upon the legislature to pass

any law by majority even though it, in substance, amended the

terms of the Constitution Act.

Jn The Bribery Commissioner v. Pedrick Ranasinghe(

1

), the

ta.;ls are these : By section 29 of the Ceylon (Constitution) Order

in Council, 1946, Parliament shall have power to make laws for

tbe "peace, order and good government" of the Island and in the

exercise

of its power under the said section it may amend or

repeal any of the provisions of the

Order in its application to the

Island. The proviso to that section says that no Bill for the

amendment

or repeal of any of the provisions of the

Order shall

be presented for the Royal assent unless it has endorsed on it a

certificate

under the hand of the

Speaker that the number of

v(ltes cast in favour thereof in the House of Representatives

amounted to not less than two-thirds

of the whole

numb.:!r of

members of the House. Under s. 55 of the said Order t'1e appoint­

ment of Judicial ·Officers was vested in the Judicial Service Com­

mission. But the Parliament under s. 41 of the Bribery Amend­

ment Act, 1958. provided for ihe appointment of the personnel

of the Bribery Tribunals hy the Governor-General 0n the advice

of the Mini,;ter of Justice. The said Amendment Act was in

conflict with the said s. 55 of the Order and it was passed without

complying with the terms of the proviso to

s. 29 of the

Order.

The Privy Council held thai the Amendment Act was void.

Lord Pearce, after considering

McCaw/ey's case(') made

th~

following observations, at p. 1310:

" ...... a legislature has no power to ignore the

conditions

of law-making that are imposed by

the

(2) [!920] A.C. 691.

798 SUPREME COURT REPORTS [1967] 2 S.C.R.

instrument which itself regulates its power to make law.

This restriction exists independently of the question

whether the legislature

is sovereign, as is the legislature

of Ceylon, or whether the Constitution is

"uncontroll­

ed", as the Board held the Constitution of Queensland

to be. Such a Constitution can, indeed, be altered or

amended by the legislature, if the regulating instrument

so provides and

if the terms of tbo;e provisions are

complied with

......

"

It will be ;een from the said judgments that an amendment

of the Constitution is made only by legislative process with ordi­

nary majority or with special majority. as the case may be. There­

fore, amendments either under Art. 368 or under other Articles

a1e made only by Parliament by following the legislative process

adopted by

it in making other Jaw. In the premises, an amendment of the Constitution can be nothing but "Jaw".

A comparative study of other Constitutions indicates I°.: 1t no

particular pattern

is followed. All the Constitutions confer

an

express power to amend, most of them provide for legislative

procedure with special majority, referendum, convention, etc., and

a few with simple majority. Indeed, Parliament of England, which

Ls a 'upreme body, can amend the constitution like any other

'tatute. As none of the Constitutions contains provisions similar

lo Art. 368 and Art.

13(2), neither the said

Constitution5 nor

the decisions given by courts thereon would

be of any assistance

in construing the

scope of Art. 368 of our Constitution.

A brief survey

of the nature of the amending

process adopted

by various constitutions will bring out the futility of any attempt

to draw inspiration from the said opinions or decisions on the

~aid constitutions. The nature of the amending power in differ·

ent constitutions generally depends on the nautre of. the polity

created by the constitution, namely, whether it

is federal or

unitary

constitution or on the fact whether it is a "Titlen .or un

unwritten constitution or on tho circumstances whether it is a

rigid or a flexible constitution. Particularly the difference can

be traced to the "spirit and ~enius of the nation in which a par­

ticular comtitution bas its birth". The following articles of the

Constitution of the different countries are brought to our notice

by one or other of the counsel that apprared before us. Art. 5 of

the Constitution of the United States of America, /,rts. 125 and

I 28 of the Commonwealth of Australia Constitution Act, Art. 92

(I ) of the British North American Act, s. 152 of the South

African Act, Art.

217 of the Constitution of the

United States oi

Brazil, Section 46 of the Constitution of Ireland, 1937, Arts. 207,

208 and 209 of the Constitution of the Union of Burma, Art. 88

of the Constitution of the Kingdom of Denmark Act, Art. 90 of

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GOLAKNATH v. PUNJAB (Subba Rao, C.J.) 799

the Constitution of the French Republic, 1954, Art. 135 of the

United States of Mexico, Art.

96 of the Constitution of Japan,

Art. 112 of the Constitution of Norway,

Art. 85 of the Constitu­

tion of the

Kingpom of Sweden, Arts. 118, 119, 120, 121, 122

and

123 of the Constitution of the Swiss Federation, Arts.

140,

141 and 142 of the Constitution of Venezuela, and Art. 146 of

the Constitution of the Union .,; Soviet Socialist Republics, 1936

and

s. 29 ( 4) of Ceylon Constitution

Order in Council, 1946.

Broadly speaking amendments can be made

by four methods :

(i)

by ordinary legislative

process with or without restrictions,

(ii)

by the people through referendum, (iii) by majority of all

the units of a federal State; and (iv)

by a special convention.

The

first method can be in four different ways, namely, (i) by

the ordinary course of legislation by absolute majority or by

special majority, (See Section 92(1) of the British North America

Act, sub-section

152 South African Act, whereunder except sec­

tions 35, 137 and 152, other provisions could be an1ended by

ordinary legislative process by absolute majority. Many consti­

tutions provide for special majorities.); (ii) ·by a fixed quorum

of members for the consideration of the proposed amendment and

a special majority for its passage; (see the defunct Constitution

of Rumania), (iii)

by dissolution and general election on a parti­

cular issue; (see the Constitutions of Belgium, Holland, Denmark

and Norway), and (iv)

by a majority of two Houses of Parlia­

ment in joint session

a~ in the Constitution of the South Afr'.ca.

The second method demands a popular vote, referendum or

plebiscite

as in Switzerland, Australia, Ireland, Italy, France and

Denmark. The third method

is by an agreement in some form

or

-other of either of the majority or of all the federating units as

in Switzerland, Australia and the United States of America. The

fourth method

is generally by creation of a special body ad hoc

for the purpose of constitution revision as in Latin America.

Lastly, some constitutions

inlpose express linlitation on the power

to amend.

(See Art. 5 of the United States Constitution and the

Constitution of the Fourth French Republic). A more elabo­rate discussion of this topic may be found n the American poli­

tical Constitution by Strong. It will, therefore, be seen that the

power to amend and the procedure to amend radically differ

from State to Stae; it is left to tM consiitution-makers to prescribe the

scope of the power and the method of amendment having regard

to the requirements of the particular State. There

is no

article in

any of the constitutions referred to

us similar to article 13(2) of

our Constitution. India adonted a different system altogether: it empowered the Parliament to amend the Constitution by the

legislaiive process subject to fundamental rights. The Indian

Constitut'.on has made the amending process comparatively flexi­

ble, but it is made subject to fundamental rights.

800 SUPREME COURT REPORTS (1967] 2 S.C. R

Now let us consider the argument that the power lo amend is

a sovereign power, that the said power is supreme to the legisla­

tive power, that it does not permit any implied limitations and

that amendments made

in

exercise of that power ihvolve political

q:iestions and that, therefore, they arc outside judicial review.

This wide proposition

is sought to be supported on the basis of

opinions of

jurist; and judicial decisions. Long extracts have

been read to

us

irom the book "The Amending of the Federal

Constitution ( l 942)" by Lester Bernhardt Orfield, and particular

reference

was made to the following

pa<;Sages :

"At the point it may be well to note that when the

Congress

is engaged in the amending process it is not

legislating. It

is exercising a peculiar power bestowed

upon it

by Article Five. This Article for the most part

controls the process; and other provisions of the Consti­

tution, such

as those relating to the passage of legisla­

tion, having but little bearing."

Adverting to the Bill of Rights, the learned author remarks that

they may

be repealed just as any other amendment and that they

are no

~ore sacred from a legal standpoint than any other part of

the Constitution. Dealing with the doctrine of implied limita­

tions, he says that it

is clearly untenable.

Posing the question

"ls !her a law about the amending power of the Constitution?",

he answers, "there is none". He would even go to the extent

of saying that the sovereignty, if it can be said to exist at all, is

located in the amending body. The author is certainly a strong

advocate of the supremacy of the amending power and an opo­

nent

of

the doctrine of implied limitations. His opinion li; based

upon the terms of Art. 5 of the Constitution of the United States

of America and his interpretati0n of the decisions of the Supreme

Court of America. Even such an extreme exponent of the doctrdie

does not say that a pa1ticular constitution cannot expressly impore

res•rictions on the power to amend or that a court cannot recon­

cile the articles couched

in unlimited

phraseology. Jnderd Art.

5 of the American Constitution imposes express limita1ior.: on the

amending power. Some passage-; from the book "Political

Science and Government" bv James Wilford Garner are cited.

Garner points out : '

"Ar unamcndablc constitution, said Mulford, is the

"worst tyranny of time, or rather the very tyTanny of

time"."

.... ut he also notices :

"The provision for amendment should be neither

s6 rigid as to make needed changes practically impos­

sible nor so flexible a~ to encourage frequent and

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unnecessary changes and thereby lower the authority of

che Constitution."

Munro in his book "The Government of the United States", 5th

Edition, l.ses strong words when he says :

" ...... it is impossible to conceive of an unamend-

able constitution

as anything but a contradiction in terms."

The learned author says that such a constitution would consti­

tute "government by the graveyards." Hugh Evancfer Willis in

his book "Constitutional Law of the United States" avers that the

doctrine of amendability of th~ Constitution is grounded in the

doctrine of the sovereignty of the people and that it has no such

implied limitations

as that an amendment shall not contain a new

grant of

power or change the dual form of government or change

the protection of the Bill of Rights,

or make any

other change in

the Constitution. Herman Finer in his book "The Theory and

Practice of Modem Government" defines "constitution" as its

process of amendment, for, in his view, to amend

is to

deconsti­

tute and reconstitute. The learned author concludes that the

amendnig clause

is so fundamental to a

constitutfon that he is

tempted to call it the constitution itself. But the learned author

recogniiies that difficulty in amendment certainly products cir­

cumstances and makes impossible the surreptitious abrogation

of rights guaranteed in the constitution. William S. Livingston

in "FeCleralism and Constitutional Change" says :

"The formal procedure of amendment is of greater

importance than the informal processes, because it

constitutes a higher authority to which appeal lies on

any question that may arise."

But there are equally eminent authors who express a different

view. In "American Jurisprudence", 2nd Edition, Vol. 16, it is

stated that a statute and a constitution though of unequal dignity

are both laws. Another calls the constitution of a State as one

of the laws of the State. Cooley in hi£ book on :·constitutional

Law" opines that changes in the fundamental laws of the State

must be indicated by the people themselves. He further, implies

limitations to the a!llending power from the belief in the consti­

tution itself, such as, the republican form of Government cannot

be abolished

as it would be revolutionary in its character. In the

same book it

is further said that the power to amend the

constitu­

tion by legislative action does not confer the power to break it

any more than it confers the power to legislate on any other

subject contrary to the prohibitions. C. · F. Strong in his book

"Modem Poliical Constitutions", 1963 edition, does not accept

the theory of absolute sovereignty

of the amending power which

does not brook any

limit~tions, .or he says :

802 SUP!ll!MI! COUllT REPORTS (1967} 2 S.C.ll.

"In short, it attempts to arrange for tho re-creation

of a constituent assembly whenever such matters are

in future to be considered, even though that assembly

be nothing more than tho ordinary legislature acting

under certain restrictions. At tho same time, there may

be some elements

of the constitution which the

consti­

tuent assembly wants to remain unalterable by the

action

of any authority whatsoever. These elements are

to be distinguished from the

rest, and generally come

under the heading

of fundamental law. Thus, for

example, the American Constitution, the oldest of the

existing

Constitutions, asserts that '.Jy no process of

amendment shall any State, without its own consent, be

deprived

of its equal suffrage in the

Senate, while

among the Constitutions more recently promulgated,

those of the Republics of France and Italy, each con­

taining a clause stating that the republican fonn of

government cannot

be the subject of an amending

proposal."

It

;, not ncc~ssary to multiply citations from text-books.

A catena

of

American decisions have been cited before us in

support of the contentioa that the amending power is a supreme

power

or that it involves political issues which are not

justici­

able. It would be futile to consider them at length, for after

going through them carefully we find that there are no consider

ed j•1dgments

of the American Courts. which would have a

\>Cr­

~uasive effect in that regard. In the Constitution of the United

States of America, prepared by Edwards S. Corwin, Legislative

Reference Service. Library of Congress, ( 1953

edn.), the

follow­

ing summary under the heading "Judicial Review under Article

Y" is given:

"Prior to 1939, the Supreme Court had ll>k~n cogni-

1.ance of a number of diverse objections to ihc validity

of specific amendments. Apart from holding that offi­

cial notice of ratification by the several States was con­

clusive upon the Courts, it had treated these questions

as justiciable, although it had unifom1ly rejected them

on the merits. In that year. however. the whole subject

was thrown into confusion by the inconclusive decision

•:1 Coleman v. Miller. This case came up on a writ of

L ·tiorari to the Supreme Court of Kansas to review the

c.e:lial of a writ of ma11damm to compel the Secretary

of the Kansas Senate to erase an endorsement on a re­

solution ratifying the proposed child labour amendment

to the Co~titution to the effect that it had been adopted

by the Kansas Senate.

The attempted ratification was

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GOLAKNATH v. PUNJAB (Subba Rao, C.J.) 803

assailed . on three grounds : ( 1) that the amendment

had been previously rejected by. the State Legislature;

(

2) that it was no longer open to ratification because

an unreasonable period of time,

thirteen years, had

elapsed since its submission to the States, and (3) that

the lieutenant governor had no right to cast the decid­

in~ vote in the Senate in favour of ratification. Four

opmions were

written in the

Supreme Court, no one of

which commanded the support of more than four mem­

bers of the Court. The majority ruled that the plain­

tiffs, members of the Kansas State Senate, had a su.lli­

cient interest in the controversy to give the federal

courts jurisdiction to review the case. Without agree­

ment as to the grounds for their decision, a different

majority affirm~ the judgment of the Kansas court

denying the relief sought. Four members who concur­

red in the result had voted to dismiss the writ on the

ground that the amending process "is politicw" in its

entirety, from submission until an amendment becomes

part of the Constitution, and

is not subject to judicial

guidance, control

or interference at any

point." Whether

the contention that the lieutenant governor should have

been permitted to cast the deciding vote in favour of

ratification presented a justiciable controversy was left

undecided, the court being equally divided on the point.

In an opinion reported as

"the opinion of the Court"

but in which it appears that only three Justices con­

curred, Chief Jusitce Hughes declared that the writ of

mandamus was properly denied because the question as

to the effect of the previous rejection of the amendment

and the lapse. of time since it

was submitted to the States were political questions which sho,.Jd be left to

Congress. On the same day, the Court dismissed a

writ of

certiorari to review a decision of the. Kentucky Court of Appeals declaring the action of the Kentucky

General Assembly purporting to ratifyin:: the child

labour amendment illegal and void. Inasmuch

as the

governor had forwarded the certified copy of the

reso­

lution to the Secretary of State before being served

with a copy

of the restraining order issued by the

State

Court, the Supreme Court found that there · was no

longer a controversy susceptible of judicial detennina­

tion."

This passage, in our view, correctly summarises the American

law

on the subject. It will be clear therefrom that prior

io 1939

the Supreme Court of America had treated the objections to the

validity of sj!ecific amendments as justici;ible and that only in

1939 it rejected them in an inconclusive judgment without

804 SUPREME COURT REPORTS (1<167] 2 S.C.R.

discussion. In this state of affairs we cannot usefully draw much A

from the judicial wisdom

of

th~ Judges of the Supreme Court

nf America.

One need not cavil at the description of an amending power

as sovereign power, for i'. is sovereign only within tile scope of

the power conferred by a particular constitution. All the author.

also agree, that a particular constitution can expressly limit the

power of amendment, both substantive and procedural. The only

conflict lies in the fact

t,hat some authors do not pennit implied

limitations when the power of amendment

is expressed in general

words. But others countenance such limitations by cons­

truction

or

othllrwise: But none of the authors goes to the

extent of saying, which is the problem before us, ihat when there

are conflicting articles couched in widest terms, the court has no

jurisdiction to construe and hannonize them. If some of the

authors meant to say

that-in our view, they did

not-,we cannot

agree with them, for, in that event this Court would not be dis­

charging its duty.

Nor can

we appreciate

the arguments repeated l:efore us by

learned counsel for the respondents that the amending proces;

involves political questions which are, outside the swpe of judi­

cial review. When a matter comes before the Court, its jurisdic­

tion does not depend upon the nature of the question raised but

on the question whether the said matter is expressly or by necei;­

sary implication excluded from its jurisdiction. Secondly, it is not

possible to define what

is a

political question and what is not.

The character of a question depends upon the circum51ances and

the nature

of a political society. To put it differently, the court

does not decide any political question at all in the ordinary

sense

of the tem1, but only ascertains whether Parliament is acting

within

the scope of the amending power. It may be that

Parlia­

ment seeks to amend the Constitution fo1 political reasons, but

the Court

in denying that power will not be

dt<eiding on political

questions, but will only be holding that Parliament has no power

to amend particular articles of the tonstitution for any purpose

whatsoever, be it political

or otherwise. We, therefore, hold that

there is nothing in the nature of the

amending power which en­

ables Parliament to override all the express or implied limi­

tations imposed

on that power. As we have pointed out earlier,

our Constitution adopted a novel method in the sense that

Parlia­

ment makes the amendm.~nt by legislative process subject to

certain restrictions and that the amendment so made being

.. \'dw" i> subject to Art. 13(2).

The next argument ~ based upon the expression ''amendment"

in Art. 368 of the Constitution and it is contended that the said

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expression lvas a positive and a negative content and that in

exercise of the power of amendment Parliament caflnot destroy

the structure of the Constitution,

but it can only modify the

pro­

visions thereof within the framework of the original instrument

for its better effectuation.

If the fundamentals

would be amen­

able to the ordinary process of amendment with a special majo­

rity, the argument proceeds, the institutions of the President can

be abolished, the parliamentary executive can be removed, the

fundamental rights can be abrogated, the concept of federalism

can be obliterated and

in short the sovereign democratic

republk

can be converted into a totalitarian system of government. There

is considerable force in this argument. Learned and lengthy

arguments are advanced

to sustain it or

to reject it. But we are

relieved of the necessity

to

express our opinion on this :ill im­

portant question as, so far as the fundamental rights are con­

cerned, the question raised can be answered on a narrower basi~.

This question may arise for consideration only if Parliament seeks

to destroy the struc.ture of the Constitution embodied in the pro­

visions other than in Part !II of the Constitution. We do not,

therefore, propose to express our opinion in that regard.

ln the view we have taken on the scope of Art. 368

vis-a-v:s

the fundamental rights, it is also unnecessary to express our

opinion on the question whether the amendment of the funda­

mental. rights is covered by the proviso to Art. 368.

The result

is that the Constitution (Seventeenth Amendment)

Act, 1964, inasmuch

as it takes away or abridges the

funda­

mental rights is void under Art. 13 ( 2) of the Constitution.

The next question

is whether our decision should

be given

retrospective operation. During the period between .1950 and

1967 i.e..

17 years, as many as

20 am~ndments were made in

our Constitution. But in th·~ context or the present. petitions it

would be enough if we notice the amendments affecting funda­

mental right to property. The Constitution came into force on

January 26, 1950. The Constitution (First Amendme.it) Act.

1951, amended Arts.

15 and 19, anJ Arts. 31-A and 31-B

were inserted with

retro>pective effect. The object of the amend­

ment was said to be to validate the acquisition of zamindaric; or

the abolition of permanent settlemr.nt without interference lrom

courts. The occasion for the amendment was that the High

Court of Patna in Kameslnmi' Singh v. State of Bihar(') held

that the Bihar Land Reforms Act (30 of 1950) passed by the

State of Bihar was unconstitutional, while the High Courts of

All.aha~ad ~nd Nagpur upheld the validity of corresponding

leg1slat10ns m Uttar Pradesh and Madhya Pradesh respectively.

(I) A. I. R. 1951 Patna 91.

L3Sbp.C.T./67-6

806 SUPREMB COURT RBPOR.TS (1967] 2 S.C.Jl.

The amendment was made when the 11ppeals from those decisiom

were pending in the Supreme Court. In Sankari Prasad's case(')

the constitutionality of the said amendment was questioned but

the amendment was upheld.

It may be noticed that the said

amendment was not made on the basis

of the power to amend

fundamental rights

recognized by this Court, but

only in

view

of the conflicting decisions of High Courts and

without

waiting for the final decision from this Court. Article 31-A was

again amended by the Constitution (Fourth Amendment) Act,

1955. Under that amendment cl. (2) of Art. 31 was amended

and cl. ( 2-A) was inserted therein. While in the original article

31-A the general expression "any prqvisions of his Part" was

found, in the amended article the scope was restricted only to

the violation of Arts. 14, 19 and

31 and 4 other clauses

were in­

cluded, namely, clauses providing for

(a) taking over the

m!lllage­

~nt of any property by the State for a limited period; (b) amal­

gamation of two or more corporations; ( c) extinguishment or

modification of rights of persons interested in corporations; and

( d) extinguishment

or modification of rights accruing under

·ny

agreement, lease or licence relating to minerals, and the definition

of "estate" was enlarged in order to include the interests of

raiyats and under-raiyats. The expressed object of the amend­

ment

was to carry out important social welfare legislations

o~ the

desired lines, to improve the national ec.inomy of the State and to

avoid serious difficulties

raised by courts in that regard. Article

3

lA has further been amended by the Constitution (Fourth

Amendment) Act, 1955.

By the said amendment in the Ninth

Schedule to the Constitution entries 14 to

20 were added. The

main objects of this amending Act was to distinguish the power

of compulsory acquisition or requisitioning of private property and

the dP.privation of property and to extend the scope of Art. 31-A

to cover different categones of social welfare legislalions and

to

enable monopolies in particular trade or busmess to be created in

favour

of tlie

State. Amended Art. 31 (2) makes the adequacy

of compensation not justiciabll'. It may be said tbat the Consti­

tution (Fourth Amendment) Act, 1955 was made by Parliament

as this Court recognized the power of Parliament to amend· Part

Ill of the Constitution; but it can also be said with some plausi­

bility that, as Parliament had exercised the power even before the

decision of this Court in

Sankari Prasad's case('), it would

have amended the Constitution even if the said decision

was not

given

by this Court. The Seventeenth Amendment Act was made

on June

20, 1964. The occasion for this amendment was the

decision of this Court

in Karimbil Kunhikoman v. State of

Kera/a(

2

), which struck down the Kerala Agrarian Relations Act

IV of 1961 relating to ryotwari lands.

Under that amendment

the definition of the expression

..

estate" was enlarged so as to take

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GOLAKNAlH v. PUNJAB (Subba Rao, C./.) 807

in any land held under ryotwari settlement and any held or let

for purposes of agriculture

or for

purp0ses ancillary thereto,

including waste land, forest land, land for pasture

or sites of

buildings and other structures occupied by cultivators of land,

agricultural labourers and village artisans.

In the Ninth Sche­

dule the amendment included items 21

<o 65. In the c-bjects and

reasons it was stated that the definition "estate/' was not wide

enough, that the courts had struck down many land

refo1m Acts

and that, therefore, in order to give them pro!ection

th.:-amend­

ment was made. The validity of the Seventeenth Amendment

Act was questioned in this Court and

was held to be valid in

Safjail Singh's case('). From the history of these amend­

ments, two things appear, namely, unconstitutional laws were

made and they were protected by the amendment of the Consti­

tution

or the amendments were made in order to protect the future

laws which would

be void but for the amendments. But the fact

remains that

this Court held as early .as in 1951 that Parliament

had power

to amend the fundamental

rights. It may, therefore,

be said that the Constitution (Fourth Amendment) Act, 1955,

al'ld the Constitution (Seventeenth Amendment) Act, 1964, were

based upon the scope of the power to amend recognized by this

Court. Further the Seventeenth Amendment Act

was also

approved by

this Court.

Between

1950 and 1967 the Legislatures of various States

mack· laws bringing about an agrarian revolution in our country

-· zamindaries, inams and other intermediarv estates were abolish­

ed, vested rights were created in tenants, consolidation

of hold­

ings of villages

was made, ceilings were fixed and the surplus

lands transferred to tenants. All these were done on the basis of

the correctness of the decisions in

Sankari Prasad' s case (

2

)

and

Sajian Singh's case('), namely, that Parliament had the power

to amend the fundamental rights and that Acts in regard to

estateS were outside judicial scrutiny on the ground

they infringed the said rights. The agrarian structure of our

country has been revolutionised on the basis of the said

laws.

Should we now give retrospectivity to our decision, it would in­

troduce chaos and

unsettle the conditions in our country. Should

we hold that because of the said consequences Parliament had

power to take away fundamental rights, a time might come when

we would gradually and imperceptibly pass under a

totalitorian

rule. Learned counsel for the petitioners as well as those for the

respondents placed

us on the horns of this diTemrna, for they have

taken extreme positions-learned counsel for

•he petitioners want

us to reach the logical position bv holding that all the said

Jaws

are void

an{! the learned counsel for the respondents persuade ~s

to hold that Parliament has unlimited power and, if it chooses,

it can do away with fundamental rights. We do not think that

(l) [1965)

1 S. C.R. ~33. (2) [19S2j S.CR. 89,

808 SUPREME COURT REPORTS (1%7] 2 S.C.R

1his Court is so helpless. As the highest Court in the land we

must evolve .some reasonable principle to meet this extraordinary

situation. There is an essential distinction between Constitution

and statutes. Comparatively speaking, Constitutio'l is perma­

nent; it j5 qn organic statute; it grows by its own inherent force.

The cons!itutional concepts are couched in elastic terms. Courts

are expected to and indeed should interpret, its terms without

doing violence

to the language to suit the expanding needs of the

'ociety.

In this process and in a real sense they make laws. Though

it is not admitted, the said role of this Court is effective and

~annot be ignored. Even in the realm of ordinary statutes, the

'ubtle working of the process

is apparent though the approach

is

more conservative and inhibitive. In the constitutional field,

therefore, to meet the present extraordinary situation that may be

.:aused by our decision, we must evolve some doctrine which has

roots

in

reason and prrcedents so that the past may be preserved

:md the future protected.

l11ere are

two doctrines familiar to American Jurisprudence,

•)Ile is described as Blackstonian theory and the other as "pros­

pective over-ruling ... which may have some relevance to the pre­

sent enqui:y Blach<onc in his Commentaries, 69 (15th edn.,

1809) stated the common law rule that the duty of the Court

was "not to pronounce a new rule but to maintain and expound

the old one". It means the Judge does not make law but only

discovers or

finds the true law. The law has always been tJ1e

same.

If a subsequent decision changes the earlier one, the latter deci­

'ion does not make law hut only discovers the correct principle of

law. The result of this

view is that it is necessarily

re'.tospective

operation. But Jurists, George F. Canfield, Robert Hill Freeman,

John Henry Wigmore and Cardozo, have expounded the doctrine

of "prospective over-ruling" and suggested it as "a ~sefui judicial

tool". !n the words of Canfield the said expressio.i means :

" ...... a court should recognize a duty to an-

nounce a new and better rule for future transaction:,

·.vhenever the court has reached the conviction that an

old rule (as established by the precedents)

is unsound

even though feeling compelled by

stare decisis to apply

the old and condemned rule to the instant case and

to transactions which had already taken

place."

Cardozo. before he became a Judge of the Supreme Court of

the ll11itcd States of America, when he was the Chief Justfce

of New York State addressing the Bar Association said thus :

1\w ru\e. (the Blackstonian rnle) tb.at we are a~ll.ed

to apply is out of tune with the life about us. It has

bten made discordant by the forces that generate a

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GOLAKNATH v. PUNJAB (Subba Rao, C.J.) 809

living law. We apJ,JIY it to this case because the repeal

might work hardship to those who have trusted to its

existence. We give notice however that any one trust­

ing to it hereafter will do at his peril."

The Sltprome Court of the United States of America, in the year

1932 after Cardozo became an Associate Justice of' that Court

in Great Northern Railway v. S1111b11rst Oll & Ref. Co.,(

1

)

applied the said doctrine to the facts of that case. In that case

the Montana Court had adhered to its previous construction of

the

statute in question but had announced that that interpreta­

tion wolud not be followed i.1 the future. It was contended

before the Supreme Court of the United States of America that a

decision of a court over-ruling earlier decision and not giving iis

ruling retro-active operation violated the due process clause of the

14th Amendment. Rejecting that plea, Cardozo said :

"This is not a case where a Court in overruling an

earlier decision has come to .the new ruling of retro­

active dealing and thereby has made invalid what was

followd in the doing. Even that may often be done

though litigants not infrequently have argued to the

contrary

.... This is a case where a Court has refused

to make its ruling retro-active, and 1 he novel stand is

taken that the Constitution of the

United States is in­

fringed by the refusal. We think that tht Federal Con­

stitution has no voice upon the subject. A state in defin­

ing the elements of adherence to precedent may make

a choice for itself between the princi

pie of forward

operation and that of relation backward.

It may be

so

that the decision of the highest courts, though later

over-ruled, was

Jaw nonetheless for intermediate

tran­

sactions .... On the other hand, it may hold to the

ancient dogma that the

Jaw declared by its

Courts. had

a platonic

or ideal existence before

the act of declara­

tion, in which event, the discredited declaration will be

viewed

as if it had never been and to reconsider

decla­

ration as law from the beginning .... The choice for

any state may be determined by the juristic philosophy

of the Judges of her Courts, their considerations of

Jaw. its origin and

nature."

The opinion of Cardozo tried to harmonize the doctrine of pros­

pective over-ruling with that of stare decisis.

Jn 1940, Hughes, C.J., in Chicot County Drainage District v.

Baxter State Bank(') stated thus :

(1) (\9~2! 287 U.S. 358. 366·. 17 L. Ed. 360. (2) (1940) 308 U.S. 371.

810 SUPREME COURT REPORTS [1%7] 2 S.C.R

"The law prior to the determination of unconstitu­

tionality is an op~rative fact and may have consequen­

ces which cannot justly

be ignored. The past cannot

always

be erased by a new judicial declaration." In Griffin v. /ll!onis(') the Supr~me Court of America reaffirm­

ed the doctrine laid down in Sunburst's case('). There, a

statute required defendants to submit bills

of exceptions as a

pre

requisite to an appeal from a conv· ;tion; the Act was held

unconsl :tutional in tha: it provided no means whereby indigent

dcfcnd~rt.1 <:ould sc~~re a copy of the record for this purpose.

Frankfun~r. J., in that context observed :

" ...... in arriving at a new principle, the judicial

process

is not important to define its scope and limits.

Adjudication

is not a mechanical exercise nor does it

compel

'either/or' determination."

In Waif v. Colorado(') a majority of the Supreme

Court held

that ia a prosecutio:i in a State Court for a state crime, the 14th

Amendment did not forbid the admission

of evidence obtained

by an unreasonable search and seizure. But in

Mapp. v.

Ohio(')

the Supreme Court reversed that decision and held that all evi­

dence obtained by searches and seizure in violation of the 4th

Amendment of the Federa! Constitution was, by virtue of the

due process clause of the 14th Amendment guaranteeing the

right to privacy free from unreasonable State instrusion, inad­

missible in a State ccurt. In

Linkierrer v. Walker(')

the ques­

tion arose whether the exclusion

of the rule enunciated in Mapp

v.

Ohio(') did not apply to State Court convictions which

had become final before the date

of that judgment. Mr. Justice Clarke, speaking for the majority observed :

"We believe that the existence of the Wolf doctrine

prior to Mapp

is 'an operative' fact and may have

consequences

whkh cannot justly be ignored. The

past cannot always be ..:rascd by a new judicial decla­

ration."

"Mapp had --·; ils prima purpose the enfor~ement of

the Fourth Amendment through the inclusion of the

exclusionary rule wi'.hin its rights ............. .

We cannot say that th's purpose would be advanced

:-; making the rule retrospective. The misconduct vf

1he police prior to Mapp has already occurred and will

-··-------

(!) !1956J 351 U.S. 12. 2 . f2) (1932) 287 U. S .1;1,366: 77 L rd l60.

(3)(1948-49] 338 U.S. 25: 193 L.Ed. 872. (4)(19G6J 367 U.S. 643: 6 L. Ed.

(5) [1%5] 38> U.S. 618. (2nd Edn) lli81.

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GOLAKNATH v.

PUNJAB (Subba Rao, C.J.) 811

not be corrected by releasing the prisoMrs ;nv.Jlvecl ....

On the other hand, the States relied on Wolf and fol­

lowed its command. · Final judgments of conviction

were entered prior

to Mapp,

Again and again the Courr

refused to reconsider Wolf and gave its implicit approv­

al to hundreds of cases in their application of its rule.

In rejecting the Wolf doctrine as to the exG!usiom.ry

rule the purpose was to deter the lawless action of the

police and

to effectively enforce the Fourth Amendment.

That purpose

will not at this late date be served by the

wholesale release of the guilty

yictims."

"Finally, there are interests in the administration of

justice and the integrity

of

the judicial process to con­

sider. To make the rule of Mapp retrospective would

tax the administration of justice

to the utmost. Hearings

would have to be held on the exciudability of evidence

long since destroyed, misplaced or deteriorated.

lf it is

excluded, the witness availab!e at the time of the original

trial

will not be available or if located their

memory

will be dimmed. To thus legitimate such an extra­

ordinary procedural weapon that has no bearing on

guilt would S'!riously disrupt the administration of

justice."

This case ha.• reaffirmed the doctrine of prospective overruling

and has taken a pragmatic approach in refusing to give it retro­

activity. In short, in America the doctrine of prospective over­

ruling is now accepted in all branch.es of law, including constiiu­

tional law.· But the carving of the limits of :etrospectivity of

the new rule is left to courts to be done, having regard to the

requirements of jus•ice. Even in England the Blackstonian theory

was criticized by Bentham and Austin. In Austin's Jurispru-

dence, 4th Ed., at page 65, the learned author

says :

·

"What hindered Bfackstone was 'the childish fiction'

employed

by our judges, that judiciary

or common

law is not made by them, b1". is a miraculous some­

thing made. by nobody, existing, I suppose, from eter­

nity, and merely declared from time to time by the

Judges."

Though English Courts in the past accepted the Blackstoilian

theory and though the

House of Lords stnctly acthered to the

doctrine of 'precedent'

in the earlier years, both the doc'rines

were practically given up

by the "Practice Statement (Judicial

Precedent)" issued by the House of Lords recorded in (1966) 1

W.L.R. 1234. Lord Gardiner L.C., speaking for the House of

Lords made the following observations.:

81~ St;PRBll: COt:l\T RErORTS [1967] ~ S.CR

"'Thdr Lordship, nC\'crthelcss recognise that too rigid

adherence to precedent may lead to injustice in a

particular case and al.;o unduly restrict the proper

development of the

Jaw.

They propose, therefore. to

modify their pre,cm practice and. while treating former

decisions of this House as normally binding. to depart

fro_1_n a previous decision when it appears right to do

so.

Jn th'.·; connection they \ill bear in mind the danger

ol disturbing rctro;pcctively the basis on which con­

tracts. settlements of property and fiscal arrangements

h:ivc been entered into and also the especial need for

certainty as to the criminal Jaw."

Thi' :tnnouncement is not intended to affect the

u'c of precedent elsewhere than in this House."

It '~ill be seen from this passage that the House of Lords here­

after in appropriate cases may depart from its p;evious decision

when it appears right to do so and in so dcpaning will bear in

mind the danger of giving effect to the said decisiou retroactivity.

We consider

that what the House of Lords

means by this state­

ment is that in differing from the precedents it will do w only

without interefering with the transactions that had taken place on

the basis of earlier decisiow. TI1is decision, to a large extent,

modifies the Blackstonian theory

and accepts, though not

ex­

pressly but by necessary implication the doctrine of "prospective

overruling."

Let us now consider some of the objections ro this doctrine.

The objections arc: (I) the doctrine involved Legislation by

courts;

(2) it would not encourage parties to prefer appeals

as

they would not get any benefit therefrom; (3) the declaration for

the future would only be obiter; '. 4) it is not a desirable change;

and ( 5) the doctrine of retroactivity serves as a brake on court'

which otherwise might be tempted to be so fascilc in overruling.

But in

our

view, tnese objections arc not insurmountable. If a

court can over-rule its earlier

decision--there cannot be any

dis­

pute now that the court can do so--.~herc cannot be any valid

reason why it should not restrict it~ ruling to the future and not

to the past. Even if the party filing an appeal may not be benc­

tited by it. in similar appeals which he may file after the change

in the law he will have the benefit.

The decision cannot be obiter

for what the court in effect does is to declare the law but on the

basis

of another doctrine restricts its scope. Stability in

bw doe,,

not mean that injustice shall be perpetuated. An illuminatini:

article on the subject is found in Pennsylvania law Review [Vol.

I 10 p. 650].

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GOLAKNATH \'. PUNJAII (Subba Rao, C./.) 813

It is a modern doctrine suitable for a fast moving society. It

does not

do away with the doctrine of

siare decisis, but confine-,

it to past transactions. I.t is true that in one sense the court only

declares the law, either customary or statutory or personal law.

While in strict theory it may be said that the doctrine involves

making of law, what the court really docs

is to declare the

la~v

but refuses to give rctroactivity to it. It is really a pragmatic

solution reconciling the two conflicting doctrines, namely, that a

coun

finds law and that it docs make law. It finds law but

res­

tricts its operation to the future. It enables the court to bring

about a smooth transition by correcting its errors without disturb­

ing the impact of those errors on the past transactions. It is left

to the discretion of the court to prescribe the limits of the retrc­

activity and thereby it enable' it to mould the relief to meet the

ends of justice.

In India there

is no statutory prohibition against

thl! court

refusing

to give retroactivity to the law declared by it.

lnd~~d,

the doc!rine of res judicata precludes any scope for retroactlVlty

in respect of a subject-matter that has been finally decided bet­

ween the parties. Further, Indian court by interpretation reject

retroactivity to statutory provisions though ccuched

in general

terms on the ground that they affect

Vc>ted rights. The present

case only attempts a further extension of the said rule against

retroactivity.

Our Constitution does not expressly or by necessary implica­

rion speak against the doctrine of prospective over-ruling. In­

deed, Arts. 32, 141 and 142 are couched in such wide and elastic

terms

as to enable this Court to fonnulate legal doctrines to

meet the ends of justice. The only limitation thereon is reason,

restraint and injustice.

Under Art. 32, for the enforcement of

the fundamental rights the Supreme Court has the power to issue

suitable directions or orders or writs. Article 141 says that the

law declared by the Supreme Court shall be binding on all courts;

and Ar:. 142 enables it in the exercise of its jurisdiction to pass

such decree or make such order a, is necessary for doing com­

plete justice in any cause or matter pending before it. These

articles are designedly made comprehensive to enable the

Supreme Court to declare law and to give such dire lions or pass

such orders

as are necessary to do complete justice. The

expres­

sion "declared'' is wider than the words "found or made''. To

declare is to announce opinion. Indeed, the latter involves· the

process. while the former expresses result. Interpretation, ascer­

taiament and evolution are parts of the process, while that inter­

preted. ascertained or evolved is declared as law. The law declar­

ed by the Supreme Court is the law of the land. If so, we do not

see any acceptable reason why it, in declaring the law in superses-

814 SUPREME COURT REPORTS [1967] 2 S.C.R..

sion of the law declared by it earlier, could not restrict the opera­

tion of the law as declared to future and save the transactions,

whether statutory or otherwise that were effected on the basis of

the earlier law.

To deny this power to the Supreme Court on

the basis of some outmoded theory that the Court only finds law

but does not make it

is to make ineffective the powerful

instru­

ment of justice placed in the hands of the highest judiciary of this

country.

As this Court for the first time has been called upon to

apply the doctrine evolved in a different country under difierent

ci1 c1Jmstances, we would like to move warily in the beginning.

We would lay down the following propositions : ( 1) The doctrine

of p~ospective over-ruling can be invol(ed only in matters arising

under

our

Constitution; (2) it can be applied only by the highest

court of the country,

i.e., the Supreme Court as it has the

consti­

tutional jurisdiction to deciare J••v binding on all the courts in

India; (3) the scope of the retroactive operation of the law

declared by the Supreme Court superseding its earlier decisions

is left to its discretion to be moulded in accordance with the

j1.1stice of the cause or matter before it.

We have arrived at two conclusions, namely, (I) Parliament

has no power to amend Part III of the Constitution so as

to take away

or abridge the fundamen!al rights; and (2) this is a

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tit case to invoke and apply the doctrine of prospective over-E

ruling. What then is the effect of our conclusion on the instant

case

? Having regard to the history of the amendments, their

impact on the social and economic affairs of

our country and the

chaotic

situati0n that may be brought about by the sudc!en with­

drawal at this stage of the amendments from the Constitution, we

think that considerable judicial restraint

is called for.

We, there-F

fore, declare that

our decision will not affect the

validi•v of the

Cons:itution (Sevemeenth Amendment) Act, 1964, or other

amendments made to the Constitution taking away or abridging

the fundamental rights. We further declare that in future Par­

liament will have no power to amend Part III of the Con~titu-

tion so as to take away or abridge the fundamental rights. In this

case we do not prop.:>se to express our opinion on the question of C

the scope of the amendability of the provisions of e:te Constitu-

tion other than the fundamentai rights, as

it does not arise for

consideration before

us. Nor arc we called upon to express out

opin'on on the question regarding the scope of the amend­

;•hili1y of Pan Ill of the Constitution o'.herwise than by taking

awJy or abridging the fundamental rights. We will not also in-H

dicatc

our view one way or other whether any of the

Aces uues­

tioncd cm be sustained under the provisions of the Constilution

wilhout !he aid

cf

Aris. 31A, 31B and the 9th Schedule.

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GOLAKNATH v. PUNJAB (Subba Rao, C.J.) 815

The aforesaid discussion leads to the following results :

( 1) The power of the Parliament to amend the

Constitution

is derived from Arts. 245, 246 and 248

of

·the Constitution and not from Art. 368 thereof

which only deals with procedure. Amendment

is a

legislative process.

(2) Amendment is 'law' within the meaning of

Art. 13 of the Constitution and, therefore, if it takes

away

or abridges the rights conferred by

Part HI

thereof, it

is void.

(3) The Coristitution (First Amendment) Act,

1951, Constitution (Fourth Amendment) Act, 1955,

and the Constitution (Seventeenth Amendment) Act.

1964, abridge the scope of the fundamental rights. But,

on the basis of earlier decisions of this Court,

tiJ.ey were

valid.

(

4)

On th. application of the doctrine of 'prospec­

tive over-ruling', as explained by us earlier, our decision

will have only prospective operation and, therefore. the

said amen.dments will continue to be valid.

(

5) We declare that the Parliament will have no

power from the date of this decision to amend any of

the provisions of Part III of the Constitution so

as to

take away or abridge the fundamental rights enshrined

therein.

( 6) As the Constitution (Seventeenth Amendment)

Act holds the

field, .the validity of the two impugned

Acts, namely, the

Punjab Security of Land Tenures Act

X of 1953, and the Mysore Land Reforms Act X of

1962,

as

amendec1 by Act XIV of 1965, cannot be

questioned on the ground that they offend Arts. 13,

14

or 31 of the Constitution.

Before

we close, it would be necessary to advert to an

argu­

ment advanced on emotional plane. It was said that if the pro­

visions of the Constitution could not be amended it would lead to

revolution. We have not ~aid that the provisions of the Constitu­

tion cannot be amended but what we have said is that they can­

not be amuded so as to taKe away or abridge the fundamental

rights. Nor can we appreciate the argument that all the agrarian

reforms which the Parliament in power wants to effectuate cannot

be brought about without amending the fundamental rights. It

was exactly to prevent this attitude and to project the

rights of

·the people that the fundamental rights were inserted in the Consii-

tu'ion. If it is the duty of the Parliament to enfor~e the directive

principles, it jg equally its dutv to enforce them without infring­

ing the fundamental rights. The Constitution-m'lkers thought·

tlcat it could be done and we also think that the direc'.ive prin-

~ 16 SUPREME COUR r REPORTS [1967] 2 S.C.R

ciplcs can rca,onably !>.! enforced within the sclf.·rcgulator} A

machinay provided b)' Pan Ill. Indeed both Parts Ill and JV

<'f the Cothtitution form an integrated scheme and is cla:;tic

enough to rc,pond to the changing need> of the ;o.:icty. The

verdict of the Parliament on the scope of tilt.! law ol social con·

trol of fund:.1mental rights is not final. but justiciable. If not ~­

the whole scheme of the Constitution will break. Wh;tt we can-a

not understand is how Jhc enforcement of the provisions c.f :he

Constitution can bring about a revolution. History shows that

revolutions arc b'.·ought about not by the majorities but by the

minorities and some time by military coups. The existence of

an all comprehensive <lmending power cannot prcvcn1 revolution.'.

if there is chaos in the country brought about by mis-rule or C

<tbusc of power. On tJ1e o·her hand. such a restrictive power give»

stability t0 the country and prevents it from passing under a tota­

litarian or dictatorial regime. We cannot obviously ba.<e our

decision on such hypoJhctical or extraordinary situations which

may be brought a[Xlut with or withoul amendments. Indeed, a

Constitution

is only pennancnt and not eternal. There

is nothinj!

co choose be". ween <lest ruction by amendment or by revolution. I>

the former " brought about by totalitarian rule, wi1ich cannot

hrook con51it1,tional check> and the other by the discontentment

hrought

about hy mis-rule.

If either happens, the constitution

will be a scrap of paper. S•ich considerations arc out of place in

construing the provisions

of the Constitution by a

courl of law.

Nor arc "c in:;Jresscd by the argument chat if th<: power of C

amendmcm is not all comprehensive there will be no way to

change the 'tructure of our Constitution or abridge the funda­

mental rights even if the whole country demands for such a

change. Firstly, this visualizes an extremely unforeseeable and

extravagant demand: but even if such a contingency arises, the

residuary power of the Parlia1aent may be relied upon to call for r

a Constitu.~nt Assembly for making a new Constitution or radic­

ally chang.inj! it. The recent Act providing for a poll in Goa.

Daman and Diu is an instance of analogous exercise of such

residuary power by the Parliament. We do no~ express our final

opinion

on this important question.

A final appeal

is made to us that

we shall not take a different

view as the decision in Sankari Prasad's case(') held thc field for G

many years. While ordinarily this Court will be reluctant to

rcver.>e its previous decision, it is its duty in the . constitutional

field to correct itself as early as possible,

for otherwise the future

progress .of the

country and the happiness of the

people will be at

stake. As we are convinced that the decision in Sankari Pra.~ud's

case(') is wrong, it is pre-eminently a typical case where this Court H

'houid over-rule it. The longer ii holds the field the greater will

(11[1952]SC.R 89.105

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GOLAKNATH I'. PUNJAB (Wanchoo, !.) 817

be the scope for erosion of fundamental rights. As it contains

the seeds of destruction of the cherished rights of the people the

'iOOner it is over-ruled the better for the country.

This argument

is answered by the remarks made by this Coui;t in the recent judgment in The Superillfendent and Legal

Remembranc<'t State of West Bengal v: The Corporation of

Calcutta (1).

·The third contention need not detain us for it has

been rejected by this Court in T/1e Benlf(ll Immunity

Company limited v. The State of Bihar('). There a

Bench of 7 Judp.es unanimously held that there was

nothing in the Constitution that prevented the Supreme

Court from departing from a previous decision of its

own if it was satisfied of its error and of i's baneful

effect on the general int~rest of the public. If the afore­

said rule of construction accepted by this Court is in­

consistent with the legal philosophy of our Constitution,

it is our Juty to correct ourselves and Jay down the

right rule. In constitutional matters which affect the

evolution of our polity,

we must more readily do so

than

in other branches of law, as perpetuation of a

mis­

take will be harmful to public interests. While continuity

and consistency are conducive

to the smoo'h evolution

of the rule of

Jaw. hesitancy to set right deviation will

retard its growth.

Jn this case, as we are satisfied that

the said rule of

construction is inconsistent with our

republican polity and, if accepted, bristles with ;rnoma­

lies. we have no hesitation to reconsider our earlier

decision."

In the result the petitions are dismissed. but in the circum­

'tances wihout costs.

Wanchoo, J. This Special Bench of eleven Judges of this Court

has been constituted to consider the correctness of the decision of

this Court in Sri Sankari Prasad Singh Deo v. Union of India(

3

)

which was accepted as correct by the majority in Saijan Singh v.

S/IJte of Rajasthan(').

The reference has been made in three petitions challenging

the constitutionality of the Seventeenth Amendment to the Consti­

tution. In one of the petitions. the inclusion of the Punjab

Security of Land Tenures Act,

(No. X of 1953) in the Nintl1

Schedule, which makes it immune from attack under any

provi­

sions contained in Part III of the Constitution, has been attacked

on the ground that the SeYemeenth Amendment is in. itself un­

constitutional. In the other two petitions, the inclusion of the

Mysore Land Refonus Act, (No. 10 of 1962) has been attacked

on the same grounds. . It is not necessary to set out the facts in

-(i)i1967J fi:<::Jl.:170.176- (2) [1955] 2 S.C.R.603.

(3) [t952] S.C.R. 89, (4) [1965) l.C.S.R. 933.

818 SUPREME COURT REPORTS [1967] 2 s.c.R.

the three petitions for nresenl purposes. The main· argument in

all the three petitions has been as to the scope and effect of Art.

368 o( the Constitution and the power conferred thereby to amend

the Constitution.

Before

we

com~ to th'e specific points rJised in the present peti­

tions, we may indicate the circumstances in which Sa11kari Prasad'.~

case(

1

)

as well as

Sajja11 Si11g/z"s case(') came to be decided and

"hat they actually decided. The Comtitution came into force

on January 26. 1950. It provides in Part Ill for certain funda­

mental· rights. Article 31 which i

0

in Part III, as it originally

,;tood, provided for compulsory acquisition of property. By

clause (I) it provided that '"no person shall be deprived of his

property save by authority of law". Clause (2) thereof provided

that any law authorising taking of possession or acquisition of pro­

perty must provide for compensation therefor and either fix the

amount c{ compensation or specify thr. principles on which, and the

manner in which, the compensaticm was to be determined and

paid. Clause (

4) made a special provision to the effect that if any Bill pending at the commencement of the Constitution in the

Legislature of a State had. after it had been passed by such Legis­

lature, been reserved for the consideration of the President and bad

•eceived his assent, then such law would net be called in question

thoui;h it contravened the provisions of cl. ( 2) relating to compen­

sation. Clause ( 6) provided that any law of the State enacted

not more than eighteen months before the Constitution might be

submitted to the President for his certification, and if so certified,

it could not be called in question on the ground that it contraven­

ed the provision of cl. (2) of Art. 31 relating to compensation.

These two clauses of Art. 31 were meant lo safeguard legisla­

tion which either bad been passed by Provincial or State legisla­

tures or which was on the anvil of State legislatures for the pur­

pose of agrarian reforms. One such piece of legislation was the

Bihar Land Refonns Act, which was passed in 1950. That Act

received the assent of the President a~ required under cl. (6) of

Art. 31.

It was however challenged before the

Patna High Court

and was struck down by that court on the ground that

it violated

Art. 14

of the Constitution. Then there was an appeal before

this Court, but while that appeal

was pending, the First Amend­

ment to the Constitution was made.

We may briefly refer to what the First Amendment provided

for.

It was the First Amendment which

was challenged and was

upheld in Sankari Prasad's case('). The First Amendment con­

tained a number or provisions; but it is necessary for present pur·

poses only to refer to those provisions which made changes in

Part III of the Constitution. These changes related to Arts. 15

(!} [19S21 S.C.R. 69. (2) [196SJ I S.C.R. 933

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GOLAKNATH v. PUNJAB (Wanchoo, /.)

819

and 19 and in addition, provided for

inse~tion of two . Articles

numbered 31-A and 31-B in Part Ill. Article 31-A provided that

no

law providing for the acquisition by the

State of an~ estate or

of any rights therein or the extinguishment or modification of any

such rights shall be ... Jemed to be void on the ground that it was

inconsistent with, or took away or abridged any of the rights

conferred by any provision in part III. The

word

"es~ate" was

also defined for the purpose of Art. 31-A. Further Article 31-B

provided for validation of certain Acts and Regulations and speci­

fied such Acts and Regulations in the Ninth Sc.hedule, which was

for the first time added to the Constitution. The Ninth Schedule

then contained

13 Acts,

all relating to estates, passed by various

legislatures of the Provinces or States. It laid down that those

Acts and Regulations would not be deemed to be void or ever to

have become. void, on the ground that they were inconsistent with

or took away or abridged any of the rights conferred by any provi­

sion of Part III. It further provided that notwithstanding any

judgment. decree or order of any cou1t or tribunal to the con­

trary, all such Acts and Regulations subject

to the power of any

competent legislature

to repeal or amend them, continue in force.

This amendment, and

in particular Arts. 31-A and 31-B were

immediately challenged

by various writ petitions in this Court and

these came to be decided on

October 5, 1951 in Sankari Prasad's

case('). The attack on the validity of the First Amendment was

made on various grounds; but three main grounds wb'.ch were

taken were, firstly, that amendments

to the Constitution made under

Art. 368 were liable to be tested under Art.

13(2); secondly

that

in any case as Arts. 31-A and 31-B inserted

in the Cons­

titution by the First Amendment affected the power of the

High Court under Art. 226 and of this Court under Articles

132 and 136, the amendment required ratification under the

proviso to Art. 368; and, thirdly, that Arts. 31-A and 31-B were

invalid on the ground that they related to matters covered by the

State List. namely, item 18 of List H, and could not therefore be

passed by Parliament. This Court rejected all the three conten­

tions. It held that although "law" would ordinarily include cons­

titutional

law, there was a clear

dcmar~ation ·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 Art. 13, "law" must be taken to mean rules or regulations made

in exercise of ordinary legislative power and not amendments to

the Constitution made in the exercise of constituent power; in

consequence Art.

13 ( 2) did not affect amendments made under

Art. 368.

It further held that Arts. 31-A and 31-B did not cur­

tail

the power of the High Court under Art.

226 or of this court

nnder Arts. 132 and 136 and did not require ratification under the

(1) (1952]

S.C.R. 89

$:.!U SUPREME COURT REPORTS [I 91> 7] 2 S.CR

provi'o contained in Ar:. 368. Finalh. 11 wa' held lhal Art>.

•31-A and 31-B were esscntiaily amendments 10 the Constitution

and Parliament as such had the power to enact such am~~dments.

In consequence. the First Amendment to the Con,~itution wa~

upheld as valid.

After this decision. !here follo1\·cd sixteen more amendment'

10 the Constitution till we come to the Scvenieenth Amendment.

which was passed

on June

20, 1964. There docs not seem to have

been challenge

to any amendment up to the Sixteenth

Amend­

ment, even though two of them. namely, the Fourth Amendment

and the Sixteenth Amendment. contained changes in the provi­

'ions of Part III of the Constitution. Further the nature of these

amendments was to add to, or ahcr or delete various other provi­

'ions of the Constitution contamed in Part Ill thereof. On

December 5, 1961 came the decision of this Court by which the

Kerala Agrarain Reforms Act (No. -l of 1961 ), passed by the

Kerala legislature. wa' struck down, among other grounds. for the

reason that ryotwari lands in South India \ere not estates within

the meaning

of At t. 31-A and therefore 1cquisition of ryotwari

land was not protected under Art. 31-A

of the Constitution :

[see

Karimbil K11nhikoma11 v. State of Kera/a(' )I. This decision was

followed by the Seventeenth Amendment on June. 20, 1964. Dy

this amendment, changes were made in Art. 31-A of the Consti·

1ution and 44 Acts were included in the Ninth Schedule to g:vc

them complete protection from attack under any provision of Part

Ill of the Constitution. Practically all these Acts related to land

tenures and were concerned with agrarian reforms. This amend­

ment was challenged before this Court i11 Sajjan Sing/i's case{°).

The points then urged were that as Art. 226 was likely to be

affected

by the Seventeenth Amendment, it required

ratification

under 'he proviso to Art. 368 and that the decision in Sankari

Pramd"s case(') which had negatived this contention required re­

consideration. It was also urged that the Seventeenth Amendment

was legi,lation with re,pcct to land and Parliament had no right

to legislate

in

that behalf, and further that as the Seventeenth

Amendment provided that the Acts put

in

lhe ~inth Schedule

would be valid

in spite of the decision of lhe

Courts. it was un­

constitutional. This Court by a majority of 3 to 2 upheld the

correctness

of the decision in

Sankari Prasad's case(

8

). It

further held unanimously that the Seventeenth Amendment did nol

require ratification under the proviso to Art. 368 because of its

indirect effect on Art. 226, and that Parliament in enacting the

Amendment was not legislating with respect to land and that it

was open to Parliament to validate legislation which had be<:n

declared invalid by courts. Finally this Court held by majority

(I) (19621 Supp. l S.C.R. 829. (2) 11965] I S.C.R. 933.

(3) (1952] S.C.R. 89.

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GOLAKNATH v. PUNJAB· (Wanchoo, J.) 821"

that the power conferred by Art. 368 included the power to take

awa; fundamental rights guaranteed by Part III and that the

power to amend was a very wide power and could not be con­

trolled

by the literal dictionary meaning of the

•....:>rd "amend",

and that the word "law" in Art. 13(2) did not include an amend­

ment of the Constitution made in pursuance of Art. 368.

The

minority however doubted the correctness of the view taken in Sankari Prasad's case(') to the effect that the word "law" in Art.

13 ( 2) did not include amendment to. the Constitution made under

Art. 368 and therefore doubted the competence of Parliament to

make any amendment to Part III

of the Constitution.

One of

the learned Judges further doubted whether making a charige in

the basic features of the Constitution could be regarded merely as

an amendment

or would, in effect, be re -writing a part of the

Constitution, and if so, whether it could be done under Art. 368.

It

was because of this

doubt thrown on the correctness of the view

taken

in

Sankari Prasad's case(') that the present reference has

been made to this Special Bench.

As the question referred to this Bench is of great constitutional

importance and affected legislation passed by various States,

notice

was issued to the Advocates General of all States and they

have appeared and intervened before

us. Further a number of

persons who were also affected by the Seventeenth Amendment

have been permitted

to intervene. The arguments on behalf .of

the petitioners and the interveners who support them may now be

briefly summarised.

It

is urged that Art. 368 when it provides for the

amendment

of the Constitution merely contains the procedure for doing SO'

and that the power to make amendment has to be found in Art

248 read with item 97 o~ List I. It is further urged that the

word "amendment" in Art. 368 means that the provisions in the

Constitution can be changed so as to improve upon them and that

this power

is of a limited character and does not authorise Parlia­

ment

to make any addition to, alteration of or deletion of any

provision of the Constitution, including the provision contained in

Part III.

So Art. 368 authorises only those amendments

which

have the effect of imprQving the Constitution. Then it is urged

that amendment permissible under Art. 368

is subject to certain

implied limitations and these limitations are that basic features

of

the Constitution cannot be amended at all. An attempt was made

to indicate some

of these basic features, as, for example, the

pro~

visions in Part m, the federal structure, the republican character

of

the. State, elected Parliament and State Legislatures on the

basis

of adult suffrage, control by the judiciary and so on, and it is said

that an amendment under Art. 368 is sub_iect to the implied limi-

(I) [1952] S.C.R. 89.

L3Sup.C'l/67· -·7

S22 SUPREME COURT REPORTS (1967] 2 S.C.R.

tations that these basic features and others of the kind cannot be

changed. Thus in effect the argument is that t'1ere is a very

limited power of amendment under the Constitution.

It

is further urged that apart from these implied

limitation.~.

there is an express limitation under Art. 13 ( 2) and the word

"law" in that Article includes an amendment of the Constitution.

lbe argument thus in the alternative is that as the word "law" in

Art. 13(2) includes a constitutional amendment, no amendment

<:an be made in Part III under Art. 368 which would actually take

away or abridge the rights guaranteed under that Part. In effect.

it is said that even if there are no implied limitations to amend the

Constitution under Art. 368, Art.

13(2) is an

express limitation

insofar

as the power to amend

Part Ill is concerned and by virtue

of Art.

13 ( 2) the rights guaranteed under

Part III cannot be

taken away or abridged under Art. 368, though it is conceded

that Part III may be amended by way of enlarging the rights

con•ained therein.

Another line of argument

is that in any case it was

necessary

to take action under the proviso to Art. 368 and as that was not

done the Seventeenth Amendment

is not valid. It is urged

that

Art. 226 is seriously aftected by the provisions contained in the

Seventeenth Amendment and that amounts to an amendmnt of

Art. 226 and in con.~uence action under the proviso was neces·

sary. It is also urged that Art. 245 was c:qually affected by the

addition of a number of Acts in the Ninth Schedule read with Art.

13(2) and therefore also it was necessary to take action under

the prqviso. It is further urged that it was not competent for

Parliament to amend the Constitution by putting a largo number

of Acts in the Ninth Schedule as the power to legislate with res­

pect

to land is solely within the competence of State

Legislatures

and that is another reason why the addition to the Ninth Schedule

read with Art. 31-B should

be struck down.

Lastly an argument had

been advanced, which we may call

the argument o~ fear. It is said that if Art. 368 is held to confer

full powor to amend each and every part of the Constitution as

has been held in Sankari Prasad's case('). Parliament may do all

kinds

of things, which were never intended, under this

unfettered

power and may, for example, abolish elected legislatures, abolish

the President or change the present form of Government into a

Presidential type like the United States Constitution or do away

with the federal structure altogether.

So it is urged that

we

should interpret Art. 368 in such a way that Parliament may not

be able to do all these things. In effect this argument of fear has

'been put forward to reinforce the contention that this Coult should

ii 1 [195~1 S.C.R. 19.

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GOLAKNATB v. PUNJAB (Wanchoo, J.) 823

A hold that there are some implied limitations on the amending

power and these implied limitations should be that there is no

power any where in the Constitution to change the basic features

of the Constitution to which reference has already been made.

This is in brief the

subntlssio111 on behalf of the petitioners and the

interveners who support them.

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The subntlssion on behalf of the Union of India_ and the States

may now

be summarised. It is urged that Art. 368 not only

pro·

vides procedure for amendment but also contains in it the power

to amend the Constitution. It is further urged that the word

"'amendment" in law does not merely mean making such changes

in the Constitution as would improve it but includes the power to

make any addition to the Constitution, any alteration of any of the

existing provisions and its substitution

by another provision, and

any deletion of any particular provision of the Constitution.

In

effect, it is urged that even if the word

"amendment" used in Art.

368 does not take in the power to abrogate the "11tire Constitu·

tion and replace it by another new Constitution, it certainly

means that any provisions of the Constitution may be changed and

this change can be in the form of addition to, alteration

of or

deletion of any provision of the Constitution. So long therefore

as the Constitution

is not entirely abrogated and replaced by

a new

Constitution 11t onei stroke, the power of amendment would enable

Parliament to make all changes in the existing Constitution by

addition;-alteration

or deletion. Subject only to complete

repeal

being not p0ssible, the power of amendment contained in Art.

368 is unfettered. It is further urged that there can be no implied

limitations

on the power to amend and the limitations if any on

this power must be found in express terms in the Article

providing

for amendment. It is conceded that there may be an express lintl·

tation not merely in the Article providing for amendment but ia

some other part of the Constitution. But it is said that if that is

so, there must be a clear provision to that effect.

In the absence

of express lintltations, therefore, there can be no

implied lintltations

on the power to amend the Constitution contained in Art. 368

atid that power will take in all changes whether by way of addi­

tion, alteration or deletion, subject only to this that the power of

amendment may not contain the power to lbrogate and repeal the

entire Constitution and substitute it wit:n a new one. _

lt is then urged that there is no express provision in Art 368

itself so far as any amendment relating to the substance

of the

amending power is concerned; the only limitations in Art. 368 are

as to procedure and courts can only see that the procedure as

indicated in Art. 368

is followed before an amendment can be

said to

be valid. It is further urged that the word

"law" in Art.

I 3 does not include an amendment of the Constitution and only

82~ SUPRl!MI! COURT REPORTS

[ 1967] 2 S.C.R.

means Jaw as made under the legislative provisions contained in

Chapter

l of

Part XI read with Chapters II and lll of Part V of

the Constitution and Chapters Ill and V of Part VI thereof. In

effect

it

is a law which is made under the Constitution which is

included in the word "law" in Art. 13(2) and not an amendment

to the Constitution under Art. 368.

As to Articles 226 and 245 and the necessity

of taking action

under the proviso to Art. 368, it

is urged that there is no change

in Arts. 226 and 245 on account of any provision in the

Seven­

teenth Amendment and therefore no action under the proviso was

necessary.

It is only direct change in Arts. 226 and 245 which

would require following the procedure

as to ratificaticn or at any

rate such change in other Articles which would have the effect of

directly compelling change in Ans 226 and 245 and that in the

present case no such direct compulsion arises.

Lastly as to the argument of fear it

is urged that there is

always

a provision with respect to amendment in written federal Consti­

tutions. Such a provision may be rigid or flexible. In our

Constitution Art. 1368 provides for a comparatively flexible pro­

vision for amendment and there is no reason to make it rigid by

implying any limitations

on

that power. Further there is no

reason to suppose that all those things will be done by Parliament

which are being urged to deny the power under Art. 368 which

flows naturally from its terms.

Besides the above. reliance

is also placed on behalf of the

Union of lndid and the States on the doctrine of stare decisis. It

is urged that since the decision of this Court in Sankari Prasad's

case('), sixteen further amendments have been made by Parlia­

ment on the faith of that decision involving over 200 Articles of

the Constitution. The amendments relating to Part III have been

mainly with respect to agrarian reforms resulting in transfers

of

title of millions of acres of land in favour of millions of people.

Therefore, even though Sankari Prasad's

case(')

has stood only

for fifteen years there has been a vast agrarian revolution effected

on the faith of that decision and this Court should not now go

back on what was decided in that case. Further, bc'..:des the

argument based

on state decisis, it is urged on the

basis nr ~enain

decisions of this Court that the unanimous decision in Sankari

Prasad's

case(') which had stood practically unchallenged for

about 15 years till the decision in Sajjan Singh's

case('), should

not be over-ruled unless it

is found to be incorrect by a

large

majority of the Judges constituting this Special &nch. It is urged

that if the present Bench

is more or less evenly divided it should

not over-rule the

unanimous decision in Sankari Prasnd'.1· ca~e(

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)

by

a majority of one.

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GOLAKNATH v. PUNJAB (Wanchoo, J.) 825

We shall first take Art. 368. It i,<; found in Part XX of the

Constitution which

is headed

"Amendment of the Constitution"

and is the only Article in that Part. That Part thus provides

specifically for the amendment of the Constitution, and the first

question that arises is whether it provides power for the amend­

ment of the Constitution

as well as the procedure for doing so. It

is not

disput~d that the procedure for amendment of the

Constitution

is to be found in Art. 368, but what is in

dispute

is whether Art. 368 confers power also in that behalf.

Now the procedure for the amendment of the Constitution

is this.

The amendment is initiated by the introduction of a Bill in either

House of Parliament. The

.Bill has to be passed in each House

by a

l!'ajority of the total membership of that House and by a

majority of not less twocthirds of the members of that House pre­

sent and voting. After it

is so passed, it has to be presented to

the President for his assent.

On such presentation if the Presi­

dent assents to the Bill,

Art. 368 provides that the Constitution

shall stand amended in accordance with the terms of the Bill.

Further there

is a proviso for ratification with respect to certain

Articles and other provisions of ihe Constitution including

Art.

368, and

those matters can only be amended if the Bill passed by

the two Houses by necessary majority ~ ratified by the legislatures

of not less than one-half of the States by resolutions to that effect.

In such a case the Bill cannot be presented for his assent to the

President until necessary ratification

is available. But when the

necessary ratification has been made, the Bill with respect to these

matters

is then presented to the President and on his assent being

given, the Constitution

stands· amended in accordance · with the

terms of the Bill.

The argument

is that there is no express provision in terms in

Art. 368 conferring power on Parliament to amend the Constitu­

tion, and in this connection our attention has been invited to an

analogous provision in the Constitution of Ireland in Art. 46,

where cl. 1 provides that any provision of the Constitution may

be. amended in the manner provided in that Article, and then fol­

lows the procedure for amendment in clauses 2 to

5. Reference

is

also made to similar provisions in other constitutions, but it is

Unnecessary to refer to them. It is urged that as Art. 368 has

nothing comparable to

cL 1 of Art. 46 of the Irish Constitution,

the power to amend the Constitution

is not in Art. 368 and must

be found

elsewhere. We are not prepared to accept this argu­

ment. The fact that Art. 368 i~ not in two part~. the fi'rst part

indicating that the Constitution shall be amended in the manner

provided theteafter, and the second part indicating the procedtire

for amendment, does not mean that the power to amend the Com­

titution is not contained in Art. 368 itself. The very fact that a

826 SUPREME COURT REPORTS (1967] 2 S.C.R,

separate Part has been devoted in the Constitution for amendment

thereof and there

is cnly one Article in that

Part shows that both

the power to amend and the procedure for amendment are to be

iound in Art. 368. Besides, the words "the Constitution shall

stand amended

in accordance with the terms of

the Bill" in An.

368 clearly in our opinion provide for the power to amend after

the procedure has been followed.

It appears that our

Constitu­

tion-makers were apparently thinking of economy of words and

elegance of language in enacting Art. 368 in the terms in which

it appears and that

is why it is not in two parts on the model of

Art.

46 of the Irish Constitution. But there can in. our opinion

be no doubt, when a separate

Part was provided headed "Amend~

ment of the Constitution" that the power to amend the· Constitu­

tion must also be contained in Art. 368 which is the only Article

in that Part. If there was any doubt about the matter, that· doubt

in our opi.iion is resolved by the words to which we, have already

referred, namely, "the. Constitution shall stand amended in

accordance with the terms of the Bill". These words can only

mean

tha_t the power is there to amend the Constitution after the

procedure has been followed.

It is however urged that t'1e power to amend the Constitution

is not to be found in Art. 368 but is contained in the residuary

power of

Parliament in Art. 248 read with item 97 of List I. It

is true that Art. 248 reRd with item 97 of List I, insofar as it

provides for residuary power of legislation,

is very wide in

itli

scope, and the a,rgument that the power to amend the Constitution

is contained in this provision appears prima facie attractive in

view of the width of the residuary power. But we fail to see why

when there

is a whole

Part devoted to the amendment of the Cons­

titution the power to amend should not be found in that Part, if

it can be reasonably found there and why Art. 368 should only be

confined to providing for procedure for amendment.

It is true

that the marginal note to Art. 368

is

"procedure for amendment

of the Constitution", but the marginal note. cannot control the

meaning of the words in the Article itself, and we have no doubt

that the words "the Constitution shall stand amended in accord­

ance with the terms of the Bill" to be found in Art. 368 confer

the power of amendment.

If we were to compare the language

of els. 2 to 5 of Art.

46 of the Irish Constitution which prescribes

the prnccdure for amendment, wc find no words therein compara­

ble to these words in Art. 368. These words clearly are com­

parable to ·cl. 1 of Art. 46 of the Irish Constitution and must be

read as conferring power on Parliament to amend the Constitution.

Besides it

is remarkable in contrast that Art. 248 read with List

I does not in terms mention the amendment of the Constitution.

While therefore there

is a whole

Part devoted to the amendment

of the Constitution,

we do not find any specific mention of the

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GOLAKNATH v. PUNJAB (Wanchoo, /.) 827

amendment of the Constitution in Art. 248 or in ;my entry of List

I.

It

would in the circumstances be more appropriate to read

the power

in Art. 368 in view of the words which we have

already

referred to than in Art. 248 read with item 97 of List I. Besides

it is a historical fact to which

we can refer that originally the

in­

tention was to vest residuary power in States, and if that intention

had been eventually carried out, it would have been impossible

for any one to argue that the power to amend the Constitution

was to be found in the residuary power if it had been vested in the

States and not in the

Union. The mere fact that during the

pas8age of the Constitution by the Constituent Assembly,

residuary power

was finally vested in the

Union would

not therefore mean that it includes the power to amend the Cons­

titution. On a comparison of the scheme of the words in Art.

368 and the scheme of the words in Art. 248 read with item 97

of List I, therefore, there is no doubt in our mind that both the

procedure and power to amend the Constitution are to be found

in Art.

368 and they are not to be found in Art. 248 read with

item

97 of List I which provides for residuary legislative power of

Parliament.

There

is in our opinion another reason why the power to

amend the Constitution cannot be found in Art.

248 read with

item

97 of List I. The Constitution is the fundamental law and

no law passed under mere legislative power conferred by the

Constitution can affect any change in the Constitution unless there

is an express power to that effect given in the Constitution itself.

But subject

to such express power given by the Constitution itself.

the fundamental law, namely the Constitution, cannot

be changed

by a law passed under the legislative provisions contained in the

Constitution

as all legislative acts passed under the

power con­

ferred by the Constitution must conform to the Constitution can

make no change therein. There are a number of Articles in the

Constitution, which expressly provide for amendment by law, as,

for example,

3, 4,

10, 59(3), 65(3), 73(2), 97, 98(3), 106,

120(2), 135, 137, 142(1), 146(2), 148(3), 149, 169,

171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221 (2),

225, 22~(2), 239(1), 241(3), 283(1) and (2), 285(2),

287, 300(1), 313, 345. 373, Sch. V, c!. 7 and Sch. VI, cl. 21;

and so far as these Articles are concerned they can be amended by

Parliament by ordinary law-making process. But so far as the

other Articles are c0ncerned they can only b0 amended by amend­

ment of the Constitution under Art. 368. Now Aft. 245 which

gives power to make Jaw for the whole or any part of the territory

of India by Parliament is "subject to the provisions of this Consti­

tution" and any law made by Parliament whether under Art. 246

read with List I or under Art. 248 read with item 97 of List I

must be subject to the provisions of the Constitution. If there­

·fore the power to amend the Constitution is contained in Art. 248

828 SUPllEMB COUllT llBPOllTS (1967) 2 S.C.R.

read with item 97 of List I, that power has to be exercised subject

to the provisions of the Constitution and canhot be used to cLange

the tundamental Jaw (namely, the Constitution) itself. But it

is argued that Art.

368 which provides a special procedure for

amendment of the Constitution should be read along with Arts.

245

and 248, and so read it would be open to amend any

provi­

sion of the Constitution by law passed under Art. 248 on the

ground that Art. 248 is subject to Art. 368 and therefore the two

together give Power

to

Parliament to pass a law under Art. 248

which will amend even those provisions of the Constitution which

are not expressly made amendable by law passed under the legis­

lative power of Parliament. This in our opinion is arguing in a

circle.

If the fundamental Jaw (i.e.

the Constitution) cannot be

changed by any law passed under the legislative powers contained

there!n, for legislation so passed must conform to the fundamen­

tal law, we fail to see how a law passed under the residuary

power, which

is

nothing more than legi.,lative power conferred on

Parliament under the Constitution, can change the Constitution

(namely, the fundamental Jaw) itself.

We may in this connection refer to the

follawing passage in

The Law and the Constitution by W. Ivor Jennings ( 1933 Ed.)

at p. 51 onwards :-

"A written constitution is thus the fundamental law

of a country, the express embodiment of the doctrine

of the reign of Jaw. All public authorities-legislative,

administrative

and judicial-take their powers directly

or indirectly from it. ....... whatever the nature of

t!1e written constitution it is clear that there

"'is a fundamental distinction between constitutional law

and the rest of the law

........ There is a clear sepa-

ration, therefore, between the constitutional Jaw and .he rest of the law."

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It is because of this difference between the fundamental law

(namely, the Constitution) and the law pa•sed under the legislative

provisions of the Constitution that it is not possible in the absence

of an express provision to that effect in the fundamental law to

change the fundamental law by ordinary legislation passed there-G

under, for such ordinary legislation must always conform 10 the

fundamental law (i.e. the Constitution).

If the power to amend

the Constitution is to be found in Art. 248 read with item 97

of List I, it will mean that ordinary legislation passed under the

fundamental law would amend that law and this cannot be done •nless there is express provision a• in Art. 3 etc. to that effect

11

In the absence of such express provision any law passed under the

legiSlative powers granted under the fundamental law cannot

amend it. So if we were to hold that the pawer to amend the

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Constitution is comprised in Art. 248, that would mean that no

amendment of the Constitution would be possible at all except to

the extent expressly provided in various Articles to which we have

referre<: already, for the power to legislate under Art. 245 read

with Art. 248

is itself subject to the Constitution. Therefore,

reading Art. 368 and considering the scheme

of the legislative

powers conferred by Articles 245 and 248 read with item 97 of

List I, this

to our mind is clear, firstly that the power to amend

the Constitution

is to be found in Art. 368 itself, and secondly,

that the power to amend the Constitution can never reside in Art.

245 and Art. 248 read with item 97 of List I, for that would make

any amendment of the Constitution impossible except with respect

to the

express provisions contained in certain Articles thereof for

amendment by

Jaw.

We may in this connection add that all this argument that

power

to amend the Constitution is to be found in Art. 245 and

Art. 248 read with item 97 of List I has been based

on one acci­

dental circumstance, and that accidental circumstance

is that the

procedure for amendment of the Constitution contained

in Art.

368

is more or less assimilated to the procedure for making ordi­

nary

Jaws under the Constitution. The argument is that consti­

tutional amendment

is also

pa%ed by the two Houses of Parlia­

ment, and is assented to by the Pre3ident like ordinary legislation,

with this difference that a special majority is required for certain

purposes and a special majority plus ratification

is required for

certain other purposes.

It may be

admitted that the procedure

for amendment under Art. 368

is somewhat similar to the pro­

cedure for passing ordinary legislation under the Constitution.

Even so, as pointed out by

Sir Ivor Jennings in the passage already

quoted, there

is a clear separation between constitutional law

and the rest of the law and that must never be forgotten. An

amendment

to the Constitution is a constitutional law and as

ob­

served in Sankari Prasad's case(') is in exercise of constituent

power; passing of ordinary law

is in exercise

of ordinary legis­

lative power and

is clearly different from the power to amend the

Constitution.

We may in this connection refer, for example, to

Art. V of the U.S. Constitution, which provides for the amend­

ment thereof.

It will be clearly seen that the power contained in

Art.

V of the U.S. Constitution is not ordinary legislative power

and

no one can possibly call it ordinary legislative power, because

the procedure provided for the amendment of the Constitution in

Art.

V differs radically from the procedure provided for ordinary

legislation, for example, the President's assent is not required for

constitutional amendment under Art. V of the U.S. Constitution.

Now if Art. 368 also

had made a similar departure from the

pro­

cedure provided for ordinary legislation, it could never have been

{') [l9j! I S.C. R 89.

830 SUPREME COURT REPORTS (1967] 2 S.C.R·

said that Art. 368 merely contained the procedure for amend­

ment and that what emerges after that procedure is followed is

ordinary law o[ the same quality and nature as emerges after

following the procedure for passing ordinary law. If, for example,

the assent of the President which is to be found in Art. 368 ha.cl

not been there and the Constitution would hav,: stood amended

after the Bill had been passed by the two Houses by li""'es"ai:·

majority and after ratification by not less than one-half of the·

States where so required, it could never have been argued that

lite power to amend the Constitution was contained in Arts. 245

and 248 read with item 97 of List I and Art. 368 merely con­

tained the procedure.

We aJe however of opinion that we should look at the quality

and nature

of what is done under Art. 368 and not lay so much

stress

on the similarity of the procedure contained in Art. 368

with the procedure for ordinary law-making. If

we thus look at

the quality

and nature of what is done under Art. 368, we

find·

that it is the exercise of constituent power for the purpose of

amending the Constitution itself and is very different from the

exercise of ordinary legislative power for passing laws which must

be in conformity with the Constitution and cannot go against any

provision thereof,

unle>s there is e'prcss provision to that effect

to which

we have already reierred. If we thus refer to the nature

and quality of what

is done under Art. 368, we immediately see

that what

emcrg~s after the procedure in Art. 368 is gone through

is not ordinary law which emerges after the legislative procedure

contained

in the

Con>titution is gone through. Thus Art. 368

provides for the coming into existence of what may be called the

fundamental law in the fonn of an amendment of the Constitution

and therefore what emerges after the procedure under Art. 368

is

gone through is not ordinary legislation but an amendment of the

Constitution which becomes a part of the fundamental law itself,

by virtue of the words contained

in Art. 368 to the effect that

the Constitution shall stand amcnJcd in accordance with the terms

of the Bill.

It is urged in this connection on behalf

o( the Union of India

that even though the assent of the Pres;dent

is required under Art.

368, the

President must assent thereto and cannot withhold his

assent

as is possible

in the case of ordinary l~w in view of Art. 111

of the Constitution, for the words "that he withholds assent there­

from" found in Art. 111 are not to be founrl in Art. 368. It is

however difficult to accept the argument on behalf of the Union

that the President cannot withhold his assent when a Bill for

amendment of the Constitution

is presented to him. Article 368

provides that a Bill for the amendment of the Constitution shall

be presented to the President for his assent. It further

provides·

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GOLAKNATH v. PUNJAB (Wanchoo, I.) 831

that upon such assent by the President, the C0nstitution shall

stand amended.

That in our opinion postulates that if assent is

not given, the Cohstitution cannot be amended. Whether a

Presi­

dent will ever withhold his assent in our form of Government is a

different matter alto!(ether, but as we read Art. 368 we cannot

-hold that the President is bound to assent and cannot withhold

his assent when a Bill for amendment of the Constitution is pre­

sented to him. We are of opinion that the President can refuse

to give his assent when a Bill for amendment of the Constitution

is presented to him, the result being that the Bill altogether falls,

for there is no specific provision for anything further to be done

about the Bill

in Art. 368 as there is in Art. 111. We may in this

connection refer to the different language used

iii cl. s· of Art. 46

of the Irish Constitution which says that "a Bill .containing a pro­

posal for the amendment of this Constitution_ shall be signed by

the Pres~dent forthwith upon his being satisfied that the provisions

of this Article have been complied with in respect thereof". It

will be seen therefore that if the intention under Art. 368 had been

that the President cannot withhold his assent, we would have

found language similar

in terms to that in cl. 5

of Art. 46 of the

lrish Constitution.

We thus see that in one respect at any rate Art. 358 even on

its present terms differs from the power of the President in

connec­

tion with ordinary legislation under the Constitution and that is

if the President withholds his assent the Bill for amendment of

the Constitution immediately falls.

We cannot accept that the

procedure provided under the proviso to Art. 111 can apply in

such a case, for this much cannot be disputed that so far

as the

procedure for amendment of the Constitution

is concerned we

mt!st look to Art. 368 only and nothing else. In any case the

mere fact that tlie procedure in Art. 368 is very much assimilated

to the progedure for p?ssing ordinary legislation is no reason for

holding that wkt emerges after the procedure under Art. J68 is

followed

is ordinary law and no more. We repeat that we must

look at the quality and nature of what

is

done· under Art. 368,

and that is, the amendment of the Constitution. If we look at

that we must hold that What emerges is not ordinary law passed

under the Constitution but something which has the effect of

amending the fundamental law itself which could not be done by

ordinary legislative process under the Constitution unless there is

express provision to that effect. We have already referred to

such express provisions in various Articles, but Art.

368 cannot

be treated

as such an Article, for it deals specifically with the

amendment of the Constitution

as a whole.

It is

also· remarkable to note in this connection that the word

"Jaw" which has been used in so many Articles of the Consti-

832 SUPREME COURT REPORTS [1967) 2 S.CR.

tution has been avoided apparently with great care in Art. 368.

We again refer to the concluding words of the main part of Art.

36~ which says that the .. Constitution shall stand amended in ac­

cordance with the terms of the Bill''. t\ow It is "'ell-known that

in the case of ordinary legislation as soon as the Bill is passed by

t>Oth Houses .and has received the assent of the Prcsidznt it be­

comes an Act. But Art. 368 provides that as soon as the Bill

for amendment

of the Constitution has l

:en passed in accordance

with the procedure provided therein the Constitution shall stan~

amended in accordance with the terms of the Bill. These words

i~ our opinion have significance of their own. It is also remark­

able that these words clc:irly 'how the difference between the

quality of what emerges after the procedure under Art. 368 is

followed and what happens when ordinary law-making procedure

is folk.~cd. Under Art. 11 J, in the case of ordinary Jaw-making

whCTJ a Hill is passed by the two Houses of P;ir!iament it is prc­

scntc<l to the P ·esic'ent an<l the Pre"ident shall declare either that

he assents to the Bill

or that he withholds assent therefrom. But

it

is remarkable

that Art. 111 docs not ;>rovidc that when the

Bill has been assented to by the President it hccomes an :\ct.

The reason for this is that the Bill a"cntcd to ty the President

though it mly become law is st<ll not declared by Art. 111 to

be a law, for such law is open to challenge in courts on various

grounds, namely, on the ground that it violates any fundamental

rights,

or on the ground that Parliament was not competent to

pass it

or on the ground that it is in

breach of any provision of

the Constit:ition. On the other hand we find that when a Bill

for the amendment of the Constitution is passed by requisite

majorily and assented tu by the President, the Constitution itself

declares that the Constitution shall stand amended

in accordance

with the terms of the Bill. Thereafter what courts can see is

whether the procedure provided in Art. 368 has been followed, for

if tl'.at is not done, the Constitution cannot stand amended in

accordance with the terms of the Bill. But if the procedure ha'

been followed, the Constitution siands amended, and there is no

question of testing the amendment of the Constitution thereafter

on the anvil

of fundamental rights or in

any· other way as in

the case

of ordinary legislation. Jn view of all this we have no

doubt that even though by accident the procedure provided in the

Constitution for amendment thereof

is very akin

<o the procedure

for passing ordinary legislation, the power contained in Art. 368

is still not ordinary legislative power but constituent power for the 'I' ·ific purpose of amendment of the Consti,ution; and it is the

qu • .ity of that power which determines the nature of what emerges

after t!1e procedure in Art. 368 has been followed and what thus

emerges is not ordinary legislation but fundamental law which

cannot

be tested, for

example, under Art. 13 (2) of the Consti­

:ution or under any other provision of the Constitution.

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We may briefly refer to an argument on behalf of the Union

of India that the amending power contained in Art. 368 is the

same sovereign power which

was possessed by the Constituent

Assembly when it made the Constitution and therefore it

is not

subject

to any fetters of any kind. We do not

thin!' it necessary

to enter into . the academic question as to where sovereignty re­

sides and whether legal sovereignty is in the people and political

sovereignty in the body which has the power to amend the Consti­

tution and vice versa. In our view the words of Art. 368 clearly

confer the power to amend the Constitution and also provide the

procedure for doing so, and that in 0ur opinion is enough for the

purpose of deciding whether th-> Seventeenth Amendment is valid

or not. Further as we have already stated, the power conferred

under

A1t. 368 is constituent power to change the fundamental

law

i.e. the Constitution, and is distinct and different from the

ordinary legislative power conferred on Parliament by various

other provisions in the Constitution.

So long as this distinction is

kept in mind Parliament would have the power under Art. 368 to

amend the Constitution and what Parliament does under Art. 368

is not ordinary law-making which is subject to Art. 13(2) or any

other Article of the Constitution. What

is the extent of the power

c.onferred on Parliament and whether there are any limitations

on

it'--express or implied-will be considered by us presently.

Bnt

we have no doubt, without entering into the question of

sove­

reignty and of whether Art. 368 confers the same sovereign power

on Parliament

as the Constituent Assembly had when framing the

Constitution, that Art. 368 does confer power on Parliament sub­

ject

t0 the procedure provided therein for amendment of any

provision of the Constitution.

This brings

us to the scope and extent of the power conferred

for amendment under Art. 368. It

is

urged that Art. 368 only

gives power

to amend the Constitution. Recourse is had on

be­

half of the petitioners to the dictionary meaning of the word

"amendment". It is said that amendment implies and means im'

provement in detail and cannot take in any change in the basic

features of the Constitution. Reference in this connection may be

made to the following meaning of the word "amend" in the Oxford

English Dictionary, namely, "to make professed improvements in

a measure before Parliament; formally, to alter in detail, though

practically it may be to alter its principle, so as to thwart it". This

meaning

at any rate does not support the case of the petitioners

that amendment merely means such change

as results in

improve­

ment in detail. It shows that in law, though amendment may

professedly be intended

to make improvements and to alter only

in detail, in

r;:ality, it may make a radical change in the provision

which

is amended. In any case. as was pointed out in Sajjan

Singh's

case(') the word

"amend" or "amendment" is well under-

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(I I [1%5] I S.C.R. 933.

~34 SUPREME C()URT REPORTS ! 1967] 2 S.C.R

stood in law and will certainly include any change whether by way A

of addition or alteration or deletion of any provision in the Consti­

tution.

There is no reason

to suppose that when the word

"amendment" of the Constitution wa> bcmg used in Art. 368, the

intention

wa' to give any meaning

le;, than what we have stated

above.

To say that

"amendment" in law only means a change

which results in improvement would make amendments imp<lssi-B

ble, for Y.hat is improvr.ment of an existing law is a matter of

opinion and what, for example, the legislature may consider an

improvem~nt may not be so considered by others. It is therefore

in our opinion impossible to introduce in the concept of amend­

ment as used in Art. 368 any idea of improvement as to details

of the Constitution. The word "amendment" used in Art. 368 C

must therefore be given its full meaning as used in law and that

means that by amendment an existing Constitution or law can be

changed, and this change can take the form either of addition to

the existing provisions,

or alteration of existing

provision> and

their substitution by others or deletion of certain provisions al­

together. In this connection reference has been made to contra.>!

certain other provisions of the Constitution, where, for example. D

the word "amend" has been followed by such words as "by way of

addition. variance or repeal" (~e Sixth Schedule, paragraph 21)

and more or less similar expressions in other Articles of the Consti­

tution. It is very difficult to say why this was done. But the

fact that no such words

appear in Art. 363

does not in our mind

make any difference, for the meaning of the word "amendment" E

in law is clearly as indicated above by us and the presence or ab­

sence of 1!xplanatory words of the nature indicated above do not

in our opinion make any difference.

The question whether the power r,f amendment given by Art

368 also includes the power to abrogate the Constitution comp­

letely and to replace it by an entire new Constitution, does not F

really arise in the present ca~. for the Seventeenth Amendment

h<l' not done any such thing a1. :l need not be considered. It ;,

-.·rough to say that it may be open to doubt whether the power of

amendment contained in Art. 368 goes to the extent of completely

abrogating the present Constitution and substituting it b,· an oo­

tirely new one. But short of that, we are of opinion that the G

power to ~n~cnd includes the power to add any provision to the

Constitution, to alter any provision and substitute any C1the~ pro­

visim. in its place and to delete any provision. 1ne Seve~tcenlh

Ame nent is merely i~ exercise of the power of amendment as

indica~~d above and cannot be struck down on the ground that

it goc' beyond the power conferred on Parliament to :tme,,,1 the

Om,tituti-.n by Art. 368. H

Tr.e next question that arises ;, whether there i' any limi­

·tation on the rn\'er of amendment as explained by l'S above.

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Limitations may be of two kinds. namely, express or implied.

So far as express limitations are concerned, there are none such in

Art. 368. When

it speaks of the

"amendment of this Consti­

tution" it obviously and clearly refers to amendment of any pro­

vision thereof, including the provisions contained in Part Ill re­

lating to fundamental rights. Whether Art. 13 ( 2) is an express

limitation on the power of amendment will be considered by u.<

later, but so far as Art. 368 is concerned there are no limitation"

whatsoever in the matter of substance on the amending power and

any provision of the Constitution,

be it in

Part III and any other

Part, can be amended under Art. 368.

The next question is whether there are any implied limita­

tions on the power of amendment contained in Art. 368, and

this brings us to the argument that there are certain basic features

of the Constitution which cannot be amended

at all and there is an implied limitation on the power of amendment contained in

Art. 368 so far as these basic features are concerned. We mav

in this connection refer to the view prevailing amongst jurists in

the United States of America as to whether there are any im­

plied limitations on the power of amendment contained in Art. V

of the U.S. Constitution. There are two lines of though~ in this

matter in the United States. Some jurists take the view that

there are certain implied limitations on the power to amend con­

tained in Art. V of the U.S. Constit!ltion. These are said to be

with respect to certain basic features, like, the republican character

of Government,

the federal structure etc.

On the other hand,

it appears that the more prevalent view amongst .iurists

in the United States :s that there are no implied limitations on the score

of the amending power in Art. V of the U.S. Constitution.

Willis

on the Constitutional Law of the

United States of America

(1936 Edition) says that probably the correct position is that the

amending power embraces everything; in other words there are

no legal limitations whatever on the power of amend".lent, ex­

cept

what

is expressly provided in Art. V : (see discussion on pp.

122

to 127). Even with respect to these express limitations.

Munro in

The

Government of the United States (Fifth Edition) at

p. 77 says that even these express limitations can be reroved and

one

of the ways of doing so is

"to remove the exception by a

preliminary amendment and thus clear the way for further action··.

Besides, as a matter of fact there is no decision of the SuprP.mc

Coon of the United States holding that there are implied limita­

tions on the power of amendment contained in Art. V of the

U.S. Constitution and all amendments so far made in the United

States have been upheld by the Supreme Court there in the few

cases that have been taken to

it for

testing the validity of the

amendments.

836 SUPRBMB COURT REPORTS (1967] 2 S.CR.

We have given careful consideration to the argument that

certain basic features of our Constituiton can;iot be amended

under Art. 368 and ha\'' colile to the conclusion that no limita­

tions can be and should be implied upon the power of amend­

ment under Art. 368. One reason for coming to this conclusion is

that if we were to accept that certain basic features of the Cons­

titution cannot be amended under Art. 368, ·it will lead to the

position that any amendment made to any Article of the Con·

stitution would be liable to challenge before courts on the ground

that it amounts to amendment of a basic feature. Parliament

would thus never be able to know what amendments it can mak:

in the Constitution and what it cannot; for, till a complete cata­

logue of basic features of the Constitution is available, it would

be impossible to make any amendmC11t under Art. 368 with • ,1y

certainty that it would be upheld by courts. If such an implied

limitation were to be put on the power of amendment contained

in Art. 368, it would only be the courts which would have the pow'r to decide what are basic features of the Constitution and

then to declare whether a particular amendment

is valid or not

on the ground that

it amends a particular basic feature or not. The

~ult would be that every amendment made in the Constitution

would provide a harvest of legal wrangles

so much so that

Parlia­

ment may never know what provisions can be amended and what

cannot. The power to amend being a constituent uower cannot

in our opinion for these reasons be held subject to any imnlied

limitations thereon on the ground that certain basic features o[

the Constitution cannot be amended. We

fail to see why if there

was any intention to make any part of the Constitution

unamend­

able, the Constituent Assembly failed to indicate it expresslv in

Art. 368.

If, for example, the Constitution-makers ;ntc-.jed

cer­

tain provisions in the Constitution, and Part III in particular,

to be not amendable,

we can see no reason why it was not so

stated in Art. 368.

On the clear words of Art. 368 which pro­

vides for amendment of the Constitution which means any pro­

vision thereof, we cannot infer any implied limitations on the

power of amendment of an; provision of the Con~tituion, be it

basic or otherwise. Our conclusion is that constituent power. like

that contained in

Art. 368, can only be subject to express

limita­

tions and not to any imnlied limitations so far as substance of the

amendments are concerned and

in the absence of anything in Art.

368

making any provision of the Constitution unamendable, it

must

be held that the Power to amend in Art. 368 reaches every

provision of the Constitution and can be used to amend anv

oro­

vision thereof. provided the procedure indicated in Art. '.168 is

followed.

Copious references were made durin,!! the course of argumen~s

to dchatcs in r·arliamcnt and it is urgc(J that it is open· to th;s

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GOLAKNATH v. l'UNJAB (Wanchoo, J.) 837

Court to look into the debates in order to interpret Art. 368 to

find out the inten ion of the Constitution-makers. We are of

opinion that we cannot and should not look into the debates that

took place in the Constituen: A>Sembly to determine the inter­

pretation of

A, t. 368

and the scope and extent of the provision

contained therein. it may be conceded that his:orical background

and perhaps what

was accepted or what was rejected by the Con­

stituent Assembly while the Constitu:ion

was being frarried, may

be taken into account

in finding out the scope and extent of Art.

368. But

we have no doubt that what was spoken in the debates

in the

Constituent Assembly cannot and should not be looked

into

in order to interpret Art. 368. Craies on

Stamte Law· (Sixth

Edition) at p. 128 say~ that "it is not permissible in discussing

the meaning of an obscure enactment, to refer to 'parliamentary

history' of a statute, in the sense of the debates which took place

in Parliament when the statute was under consideration", and

supports his

view with reference to a large number of English

cases. The same

is the view in Maxwell on Interpretation of

Statutes, (11th Edition) p. 26. Crawford on Statutory Construc­

tion

(1940 Edition) at p. 340 says that resort may not be had

to debates to ascertain legislative intent, though historical back­

ground

in which the legislation came to be passed, can be taken

into consideration.

In Administrator General of Bengal v. Prem [,al

Mullick('),

the Privy Council held that "proceedings of the legislature cannot

be referred to

as legitimate aids to the construction of the Act in

which they

result."

In Baxter v. Commissioner of Taxation('\, it was said that

reference to historical facts can be made

in order to interpret a

statute. There was however no reference to the debates in order

to arrive at the meaning of a particular provision of the Constitu­

tion there

in dispute.

In A. K. Gopalan v. the State of Madras(

3

), Kania

C.J. re­

fer6ng to the debates and reports of the Drafting Committee of

the Constituent Assembly in respect of the words of Art. 21

observed at

p.

110 that they might not be read to control the

meaning of the Article. In that case all that was accepted was

that "due process of law" which was a term used in the U.S.

Constitution, was not accepted for the purpose of Art. 21 which

used the words "the procedure established by ;dw". Patanjali

Sastri J. (at p. 202) also refused to look at the debates and

particularly the speeches made in order to determine the meaning

of Art. 21. Faz! Ali,

J. (at p. 158) was of opinion that the pro-

(I) [189S] 221.A. 107. (2) (1907] 4 C.L.R. J087.

(3) [1950) S.C.R. 88.

LJSup.CI/67-8

au SUPltliME COUltT llBPOll.TS (1967] 2 S.C.R

cecclings and discussiom in the Constituent Assembly were not A

relevant for the purpose of construing the expressions used in

Art. 21.

Again in The Automobile Transport (P..ajastha11) Limited v.

the Stale of Rajasthan('), this Coun looked into the historical

background but refused t<,> look into the debates in order to deter­

mine the meaning of the provisions of the Constitution in dispute

in

that

case.

We are therefore of opinion that it is not possible to read the

speeches made in the Constituent Assembly in order to interpret

Art. 368 or 4l define its extent and scope and to determine what

it. takes in and what it does not. As to the historical facts, namely.

what was accepted

or what was avoided in the Constituent

Assem•

bly in co;..nection with Art. 368, it is enou~,h to say that we have

not been able to find any help from the material relating to this.

There were proposals for restricting the power of amendment

under

An. 368 and

making fundamental rights immune there­

from and there were counter proposals before the Consthuent

Assembly for making the power of amendment all-embracing.

They were all either dropped or negatived and iii the circumstan­

ces are of no help in determining the interpretation of Art. 368

which mYSt be interpreted on the words thereof as they finally

found place

in the Constitution, and on those words we have no

docbt that there are no implied

limitations of any kind on the

power to amend given therein.

An argument is also raised

that limitations on the power to

amend the Constitution can be found in the preamble to the Con­

stitution. As to that we may refer only 4l in re: iirl! Berubari

Union and Exclnnge of Enclaves(') with respect to the value of

the preamble

to the Constitution and its importance therein.

It

was observed in that case unanimously by a Bench of nine J udgcs

thz.t "although it may be correct to describe the preamble as a

key to the mind of the Constitution-makers, it forms no part of

the Constitution and cannot

be regarded as

th., source of any

substantive power which the body of the Constitution alone can

confer on the Government, expressly

or by implication.

This is

equally true to prohibitions and limitationsn. The Court there

was considering whether the preatnble could in any way limit

the power

of Parliament to cede any pan of the national

territory

and held that it was not correct to say that "the preamble could

ill any way limit the power of Par!iament to cede parts c>f the

national territory". On a parity of reasoning we are of opinion

that the preamble cannot prohibit

or control in any way or impose

any implied prohibitions

or limitations on the power to amend

the

Constitution contained in Art. 368.

(t) (1963] I S.C.R. 491. (2) (£960] 3 S.C.R. 250.

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GOLAKNATH v. PUNJAB (Wa11choo, J.) 839

This brings us to the question whether the word "law" in Art.

13 ( 2) includes an amendment of the Constitution, and therefore

there

is an express provision in Art. 13 ( 2) which at least limits

the power of amendment under Art. 368 to this extent that

by

such amendment· fundamental rights guaranteed by Part Ill can­

not be taken away or abridged. We have already pointed out

that in

Sankari Prasad's case(') as well as

Sujjan Si11gh's case('),

it has already been held, in one case unanimously and in the

other

by majority, that the word

"law" in An. 13(2) does not

include an amendment of the Constitution, and it is the correct­

nes~ of this view which is being impugned before this Bench.

Article

13 is in three parts. The first part lays down that

"all

laws in force in the territory of India immediately before the

commencement of this Constitution, insofar

as they are

inconsis­

tent with the provisions of this Part, shall, to the extent of such

inconsistency,

be

void". Further all previous constitutional pro­

vhions were repealed by Art. 395 which provided that "the

Indian Independence Act, 194 7, and the Government of India

Act, 1935, together with all enactments amending or supple­

menting the latter Act, but not including the Abolition of Privy

Council Jurisdiction Act, 1949, are hereby repealed." Thus it

is clear that the word "law" in Art. 13 (l) does not inciudo any

law in the nature of a constitutional provision, for no such law re­

mained after the repeal in Art. 395.

Then comes the second part of Art.

13, which says that

"the

State shall not make any law which takes away or abridges the

rights conferred by this Part and any law made in contravention

of Ibis clause shall, to the extent of the contravention, be void".

The third part defines the word "law" for the purpose of Art. .13;

the definition is inclusive and not exhaustive. It is because of the

definition in cl. ( 3) of Art.

13 being

inclusive that it is urged that

the word "law" in Art. 13(2) includes an amendment of the

Constitution also. Now we see no reason why if the word "law"

in Art. 13 ( 1) relating to past laws does not include any constitu­

tional provision the word "law" in cl. (2) would take in an

amendment of the Constitution, for it would be reasonable to read

the word "law" in Art. 13 (2) includes an amendment of the

13. But apart from this consideration,

we are of opinion that the

word

"law" in Art. 13(2) could never have been intended to

take in an amendment of the Constitution. What Art.

13(2)

means is that a law made under the constitutional provisions

would be tested

on the anvil of

Part :m and if it takes away or

abridges rights conferred

by

Part Ill it v;ould be void to the ex­

tent of the contravention. There are many Articles in the Con­

stitution which provide directly for making law in addition to

Articles 245, 246, 248, etc. ~nd the three Lists and Art. 13(2)

(I) [1~52] S.C.R. 89. (2) [1965] I S.C.R. 913.

840 SUPREME COURT REPORTS [1967) 2 S.C R.

prohibits the State fr' .n making any law under these provisions.

W:~ sec no difliculty in the circumstances in holding that Art. 13

(2) when it taiks of the State making any law, refers to the law

made under the provisions contained in Ch. I of Part XI of the

Cons:itution beginning with Art. 245 and also other prov;sions

already referred to earlier. Article 246 provides that Parliament

may make laws for the whole or any part of the territory of India

and t~ legislature ot a State may make laws for the whole or any

part of the State. Article 246( I) gives exclusive power to

P~rliament lo make laws with respect to subjects enumerated in

List I. Article 246 (

3) gives exclusive power to

State lcgisiaturcs

to make laws with respect to List II. Article 248 (I) gives ex­

clusive power to Parliament to make laws with respect to any

matter not enumerated

in the Concurrent List or the

State List.

We are referring to these provisions merely to show that the

various provisions

in Chapter I of

Part XI provide for making

laws, and these IJws are all laws which are made under the legis­

lative power conferred on Parliament or on State legislatures

unc!er !he Constitution. Therefore when in Art. 13 (2) it is

said that the S1a·e shall not make any law (Stale there including

Parliament and legislature of each State), its meaning could only

take in laws made

by

Parliament and Stale legislatures under the

powers conferred under Chap'.er I of Part XI and also other pro­

visions already rcferr.::d to earlier. We have already held that

the power to amend the Constitution

is to be found in

Art. 368

along with the procedure and that such power

is

no: to be found

in Art. 248 read item 97 of List I. Therefore an amendmcn: of

the Constitution

is not

an ordinary law made under the powers

conferred under Chapter I of Part Xl of the Constitution and

cannot be subject to Art.

13(2) where the word

"law" n.ust be

read

as meaning law made under the ordinary legislative power. We have already referred to a large number of Articles where

Parliament is given the power to make law with respect to those

Articles. So far as this power of Parliamen• is concerned it is ordi­

nary legislat1ve power and it will certainly be subject to Art. 13

(2). But there can in our opinion be no doubt that when Art.

13(2) prohibits the State from makir.r; any Jaw which takes

away

or abridges

righ~s conferred by Part Ill, it is only referring

to ordinary legislative power conferred on Parliament and legis­

latures of States and cannot have any reference to the constituent

power for amendment of the Constitution contained in Art. 368.

'Ve have already pointed out that there are no implied limi­

tat ,11s on the power to amend under Art. 368 and it is open to

Parliament under that Article to amend any part of the Constitu­

tion, inclt!ding Part Ill. It is worth remembering that a whole

Part XX is devoted by the Constitution-makers to the subject of

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GOLAKNATH v. PUNJAB (Wanchoo, J.) 841

amendment of the Constitution. If it was their intention that Part

III of the Constitution will not be liable to amendment by way

of abridgeme.1t or 0tbrogation under the amending power contain­

ed in Art. 368 we see no reason why an express provision to

tl>at r.ffect was not made in Art. 368. We cannot see what pre­

vented the Constituent Assembly from making that clear by an

express provision in Art.

368. lt is however said that it was not

necessary

to say so in Art. 368, because the provision was already

made in

Art. 13.(2). We are unable to accept this contention,

for we have no doubt that Art. 13

(2), when it refers to making

of Jaws is only referring to the ordinary legislative power and not

to the constituent power which results in amendment

of the

Con­

stitution. In any case it seems to us somewhat contradictory that

in Art.

368 power should have been. given to amend any

provi­

sion of the Constitution without any limitations but indirectly

that p0w.er is limited by using words of doubtful import in Art.

13(2). It is remarKable that in Art. 13(2) there is no express

pru~ision that ar:icndmcnt of the Constitution, under Art. 368,

would be subject thereto_ It seems strange indeed that no express

provision

was made in Part XX in

this matter and even in Art.

J

3(2) no express provision is made to this effect, and in both

places the matter

is left in a state of uncertainty.

It is also re­

markable tha'. in Art. 368 the word "law", which we find so often

used

in so many Articles of the Constitution is conspicuously

avoided, and

it is specifically provided that after the procedure

has

oeen gone through the Constitution shall stand amended in

accordance with the terms

ot the Bill. This language of

Art. 368

is very significant and ciearly makes a distinction between a con­

stitutional Amendment and an ordinary law passed as an Amend­

ing Act. The validity of a law has to be determined at the time

when the Bill actually matures into an Act and not

at the stage

while it

is still a Bill. The provision in Art. 368 has the effect

that when

a Bill amending the Constitution receives the assent of

the President, the Constitution stands amended in accordance

with the terms of the Bill. The Constitution thus stands amended

in terms nf the Bill if the Bill has been introduced, passed and

assented to by the President in accordance with the procedure

laid down

in Art. 368 and not as a result of the Bill becoming

an Amendment Act introducing amendment in the Constitution.

Tl'e provision that the Con8titution shall stand amended in terms

of the Bill

was thus c

1

early intended to indicate that the

amend­

ment of the Constitution is not dependent on the Bill being treat­

ed as a law or an Act duly passed by Parliament. Thus it is clear

that by indicating that the Constitution

is to stand amended in

accordance with the terms

of the Bill, Art. 368 clearly

envisage~

that the r.ower of amendment of the Constitution stands on an en­

tirely different footing from an Jrdinary law made by Parliament

fo exercise of its legislative power.

842 SUPllliMB COUll.T REPORTS (1967) 2 S.C.R.

If we keep in mind this difference bctw!Al a constitutional

amendment

or constitutional. law and an ordinary amending

Acl or law, it should not be difficult to hold that when Art. 13

(2) speaks of the

State making a law, it is referring to ordinary

law

made under the powers conferred by Art. 245 etc read with

various Lists and various provisions

of the Constitution where

~­

press provfr · ,n to that effect has been made and is not referring

Lo the amendment of the Conslilution which is made under the

constituent power. Once it is held that the power to amend is

found in Art. 368 .ind 1s not to be fou.i.d in Art. 248 read with

i1tm 97 of List I, it must follow that the power to amend the

Comtitution under Art. 368 is a different power (namely, consti­

tuent power) and when Art. 13(2) speaks of making !aw, it

can only refer

to

making ordinary law, particularly when we

compare the words of Art.

13(2) (namely, the

State shall not

make any law) and the words of Arts. 245, 248, and 2SO

(which all speak of Parliament making law. State-legislatures

making law, and so

on).

Lastly, as the power to amend is in Art. 368 and on the

words, as <hey stand in that Article, that power is unfettered and

tncludes

Lhe power to amend

Part Ill, it is strange that that power

should be limited by putting an interpretation on the word "law"

in An. 13(2), which would include constitutional law also.

There i·; nothing to suggest this even in the inclusive definition of

the words "law" and "laws in force" in Art. 13(3). Besides it

is conceded on behalf of the petitioners that Ar:, 368 gives power

to amend Part III, but that power is only to amend one way,

namely, towards enlargement of the rights contained therein, and

net the other way, namely, for abridging or taking away the rights

contained therein. We must say that it would require a very

clear provision in the Constitution to read the power to amend

the Constitution relating to Part m in thL~ mannti'. We cannot

find that clear provision

in Art. 13(2). We repeat

!hat when the

Constituent Assembly was taking the trouble of providing a whcle

P~rt for amendment of the Constitution a11d •·1hen the words in

Art. 368 clearly give the power to amend the Constitution and

are subject

to no implied

limitations and contain no express liini­

rntions, it is strange indeed that it should have omitted to provide

iu that very Article that Part 1:1 is not liable to amendment thcre­

u~dcr. Jn any c~sc if the power of amendment confened by the

wonis of Art. 368 is unfe"cred, we must avoid any inconsistency

bern""n that power and the provision contained in Art. 13(2).

We avoid that in keeping with the unfettered power in Art. 368

by reading the word "law" in Art. 13(2) as meaning law passed

under ordinary legislative power ?.nd thus not including an

amendment of the Comtitution therein. The words in Art. 13

('.!) are in our opinion not ~pccific and clear enough to take in

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GOLAKNATH v. PUNJAB (Wanchoo, J.) 843

t)J.e power of amendment under Art. 368 and must be confined

ohly to the power of ordinary law-ma'.king contained in Arts. 245

etc., and other provisions

of the Constitution read with various

Lists. We have therefore no hesitation in agreeing with the view taken in Sankari Prasad' s case (

1

)

which was upheld by the

majority in

Sajjan Singh's

case(').

The next argument is that action under the proviso to Art.

368

is necessary as the Seventeenth Amendment

afiects the power

of the High Court contained in Art. 226. I~ is said that by

including various Acts in the Ninth Schedule and making them

immune from challenge under the provisions contained in Part

III, the power of the High Court under Art. 226 is affected inas­

much as the High Court cannot strike down any of the Acts

included in the Ninth Schedule on the ground that they take

away or abridge the rights conferred by Part III. So it is said

that there has been a change in Art. 226 and it

was necessary

·

that the Seventeenth Amendment should have been ratified by

more than half the States under the proviso. A similar argument

was raised in Sankari Prasad' s case (

1

)

and was turned down

unanimously.· The same argument was again raised· in Sajjan

Singh's case(

2

)

and was also turned down. Now ratification

is required under the proviso if the amendment seeks to make

an~

change in various . provisions mentioned therein and one such

provision

is Art.

226. The question therefore is whetber the

Seventeenth Amendment makes any change in Art. 226 and

whether this change has to be a direct change in the words

of Art. 226

or whether merely because the1e may be some effect

by the Seventeenth Amendment on the content of the power in

Art. 226 it will amount to change in Art. 226. We are of

opinion that when the proviso lays down that there must be

rati­

fication when there is any change in the entrenched provisions,

including Art. 226, it means that there must be actPal change

in the tenns of the provision concerned.

If there

· is no actual

change directly in the entrenched provision, no ratification

is

required, even if any

am~ndmen! of any other provision of the

Constitution may have some effect indirectly on the entrenched

provisions mentioned in the proviso. But it

is

urgeu that there

may be such a change in some other provision

as would seriously afiect an entrenched provision, and in such a case ratification

should be necessary. This argument

was also dealt with

;, the

majority judgment in

Sajjan

Singh's case\

2

)

where the doctrine

of pith and substance

was applied and it was held that where the

amendment in any other

Article so affects the entrenched Article

as to amount to an amendment therein, then ratification may be

necessary, even though the entrenehed Article may not be direct.

ly touched. Perhaps the use of the doctrine of pith and substance

(1) [!952] S. C.R. 89. (2) [1965] I S.C.R. 933.

844 SUPREME COURT REPORTS Ii%"] 2 S.CR.

:o sµch a case is not quite apt. But what was meant in Sajjan

s;,,~h·s case(

1

) was that if there is such an amendment of an

uncntrcnc:hed Article that it will directly affect an entr~nchcd

1iiclc and nc<.:~'.'-~itat~ a ci1angc therein, then recourse n1ust be

had to ratification under the proviso. We may illustrate this

hy t1vo cxamp!es. Article 226 lays down inter a/1a t\1at the High

Court shall have pow~r to isrnc writs for the enforcement of any

of the rights conferred by Part Ill and for any other purpose.

Now as1ume that Part Ill is completely deleted by amendment

of the Constitution. If that takes place, it will necessitate an

amendment of Art. 226 ~lso and deletion therefrom of the words

"for the enforcement of any of the rights conferred by Part III".

We have no doubt thut if such a contingency ever happens and

Part Ill is completely deleted, Parliament will amend Art. 226

also and that will necessitate ratification under the proviso. But

suppose Parliament merely deletes Part Ill and docs not make the

necessary consequential amendment

in Art. 226, it can then

be

said that de let ion of Part Ill necessitates change in Art. 226

also, and therefore in such a case ratification is necessary. even

though Parliament may not have in fact provided for amendment

of Art. 226.

Take another example. Article 54 is 2;i entrenched Article

and provides for the election of the President. So is Art. 55

which provides for the manner of election. Article 52 which

lays down that there shall be a President i> on the other hand

not an entrenched Article. It

is said that Art. 52 may be altered

and something

else may be substituted in its place and that would

not require ratification in terms as Art. 52 is not among the

entrenched Articles. But we are of opinion that if Parliament

amends Art. 52, it is bound to make consequential amendments

in Arts.

54 and 55 which deal with the election of the President

and the manner thereof and if it is so the entire amendment must

be submitted for ratification. But suppose Parliament merely

amends Art. 52 and makes no rhange in Arts.

5,· and 55 (a

supposition which

is impossible to visualise).. In that case it

would

in our opinion be right to hold that Art. 52 could not be

altered by abolition of the cffice of the

President without nec~ssi­

tating a change in Arts. 54 and 55 and in such a case if Art. 52

alone is altered by Parliament, to abolish the office of President,

it will require ratification.

These two examples will show where alteration or deletion

of

an unentrenched Article would necessitate amendment of an

entrenched Article, and

in such a case if

Parliamrnt ta1'.es the in­

credible course

of amending only the

un~ntrenched Article and

not amcnciing

the enrrenched Article, courts can say that ratifi-

---·--·-···-··

(I) [1965) t S.C.R. 933.

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GOLAKNATH v. PUNJAB (Wanchao, /.)

845

cation is necessary even for amending the unentrenched Art!cle,

for it directly necessitates a change in an entrenched Article.

But short of that we are of opinion that merely because there is

some effect indirectly on an entrenched Article by amendment

of an une11trenched Article it is not necessary that there should be

ratification in such circumstances also.

Besides, let

us consider what would happen if the argument

on behalf of the petitioners

is accepted that ratification is

neces­

sary whenever there is even indirect effect on an entrenched

Article

by amending an unentrenched Article. Take the case of

Art. 226 itself.

It gives power to the High

Com t not only to

issue writs for the enforcement of fundamental rights but .to

issue them for any other purpose. Writs have thus been issued

by High Courts for enforcing other rights conferred by ordinary

laws

as well as under other provisions of the

Constitution, like

Arts. 301 and 311. On this argument if any change is made in

Arts. 30 I and 3 I I there is bound to be an effect on Art. 226 and

therefore ratification would

be

necessary, even though both Arts.

301 and 3I1 are not entrenched in the proviso. Further, take

an ordinary law which confers certain rights and

it is amended

and those rights are taken away. Article 226 would be clearly

affected. Before the amendment those rights may be enforced

through Art. 226

while after the amendment the rights having

disappeared there can be no enforcement thereof. Therefore, on

this -argument even if there is amendment of ordinary law there

would

be an

effec• on Art. 226 and it must therefore be amended

every time even when ordinary

Jaw is changed and the entire

procedure under Art. 368 must be gone through including

rati­

fication under the proviso. It is however said that when ordi­

nary law is amended, rights disappear and therefore there is no

question of enforcement thereof; if that is correct with respect to

ordinary

Jaw, it is in our opinion equally correct with respect to

the amendment of an unentrenched provision of the

Co:i;.titu­

tion. The answer given in Sankari Pri:zsad's case(') to this argu­

ment was that Art. 226 remained just the same as it was before,

and only a certain class of cases had been excluded from the

purview of Part III and the cr:mrts could no lonf?er interfere, not

because their powers were curtailtd in any manner or to any ex­

tent, but because there would

be no occasion thereafter for the

exercise of their power

in such cases. We respectfully agree with

these observations and are of opinion that merelv because there

is some indirect effect on Art. 226 it was not _1ecessary that the

Seventeenth Amendment

shoi;;d have been ratified bv more than

one half

of the States. It is only in the extreme case, ihe examples

of which we have given above, that an

amendmen• of an un­

entrenched Article without amendn.ent of entrenched Article

-(I) [1952] S.C.R. 89.

SUPllEME COURT ltl!PORTS

(1967] 2 s.c.R.

might be had for want of ratification, and this is what was in­

tended by the majority judgment in Sajjan Singh's case(

1

), when

it applied the doctrine

of pith and substance in these

circum­

stances. The argument that ratification is necessary as Art. 226

is indirectly affected !:as therefore no force and must be rejected.

This

is

equally true with respect to the power of this Court under

Arts. 132 and 136.

Then it is urged that Art. 24S is enlarged by the Seventeenth

Amendment inasmuch as State legislatures

and Parliament

were

freed from the control of Part III in the matter of certain laws

affecting, for example, ryotwari lands, :µid therefore as Art. 24S

is an entrenched Article there should have been ratification under

the proviso. This argument in

our opinion is of the same

type

as the argument with respect to the effect on Art. 226 and our

answer is the same, namely, that there is no direct effect on Art.

24S by the amendment and the indirect effect, if any, does not

require that there should have been ratification in the present

C8Se.

It is then urged that ratiucation is necessary as Art. 31-B

deals with State legislation and in any case Parliament cannot

make any law with respect to Acts which were put in the Ninth

Schedule and therefore Parliament could not amend the Con­

stitution in the manner in which it was done by making additions

in the Ninth Schedule, both for want

of ratification and for want

of legislative competence. The answer to this argument was

given in

Sankari Prasad's case(') and it was observed

there that-

"Article 31-A and 31-B really seek to save a cer­

tain class of laws and certain specified laws already

passed from the combined operation of Art. 13 read

with olhcr relevant Articles of Part III. The new

Articles being t.hus essentially amendments of the Con­

stirmion, Parliament had the power of enacti".tg them.

That laws thus saved relate lo matters covered by List

II does nor in any way affect the position. It was said

that P~rliament could not validate a law which it had

no power

to enact. Tho proposition holds good where

the validity

of the

impul!ned orovision turns on whe­

ther the subject matter, falls within or without the juris­

diction of the legislature which passed it. But to make

a law which con:ravenes the Constitution. constitu­

tionally valid is a maller of constitutional amendment

and a• such it falls within the exclusive power of

Parliament.''

(I) Jl96l) 1 SC.R.933. (2) rJ952J S.C.R. 89.

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GOLAKNATH v. PUNJAB (Wanchoo, J.) 847

We respectfully agree with these observations. · They succinctly

put the legal aild constitutional position with respect to the vali­

dity of Arts, 31-A and 31-B. It seems to us that Art. 31-B in

particular is a legislative drafting device which compendiously

puts in one place amendments which would otherwise have been

added to the Constitution under various Articles in Part ill.

The laws in the Ninth Schedule have by the device of Art. 31-B

been excepted from the various provisions in Part III, which

affected them and this exception could only be made by Parlia­

ment. The infumity in the Acts put in the Ninth Schedule was

apprehended to be a constitutional infirmity on the ground that

those laws might take away

or abridge rights conferred by

Part

ill. Such a constitutional infinnity could not be cured by State

legislatures in ant way and could only be cured by Parliament

by constitutional amendment. What Parliament in fact did by

including various Acts

in the Ninth Schedule read with Art. 31-B

was to amend the various provisions

iJ Part Ill, which affected

these Acts by making them an exception to those provisions in

Part III. This could only be done by Parliament under the

constituent power

it had under Art. 368 and there was no question

of the application of the proviso

in such a case, for Parliament

was amending

Part III only with respect to these laws. The laws

jlad already been passed by State legislatures and it was their

constitutional infirmity, if any, which

was being cured by the de\ice adopted in Art. 31-B read with the Ninth Schedule, the

amendment being only of the relevant provisions of Part ill

which was compendiously put in one place in Art. 31-B. Parlia­

ment could alone do it under Art. 368 and there was no nece5-

sity for any ratification under the proviso, for amendment of

Part ill is not entrenched in the proviso.

Nor

is there any force in the argument that Parliament could

not validate those laws by curing the constitutional infirmity

be­

cause they dealt with land which is in List II of the Seventh

Schedule to the Constitution over which State Legislatures have

exclusive legislative power. The laws had already been passed

by

State legislatures under ·their exclusive powers; what has been

done by the Seventeenth Amen<lment is to cure the constitutional

infirmity, if any, in these la>:s 1n relation to Part ill. That could

only be done by Parliament and in so doing Parliament

was not

encroaching on the exclusive legislative power of the State. The

States had already passed the laws and all that was done by the

Seventeenth Amendment

was to cure any constitutional infirmity

in the laws by including them in the Ninth Schedule read

with

Art. 31-B. We must therefore reject the argument that the

Seventeenth Amendment required ratification because laws put in

the Ninth Schedule were State laws. We must equally reject

the argument that

as these laws

dealt with land, which is in the·

848 SUPREME COURT REPORTS [1967] 2 S.CR.

exclusive legislative power of State legislature, Parliament could

not cure the constitutional infirrnilv,

if any, in these laws by

putting them

in the Ninth Schedule:

We now come to what may be called the argument of fear.

It is urged that if Art. 368 confers complete power to amend

each and every provision of the Cc~1stitution-as we have held

that

it does-frightful consequences will follow on such an inter­

pretation.

If

Parliament is clothed with such a power to amend

the Constitution it may proceed to do away with fundamental

rights altogether, it may abolish elected legislatures,

it may

change the present form of Government, it may do away with

the federal structuFe and create

ci unitary state instead, and so

on. It

is therefore argued that

y;e should give a limited interpre­

tation

to the power of amendment contained in Art. 368, as

otherwise we shall be

givin3 pt!!wer 'to Parliament to destroy the

Constitution itself.

This argument

is really a political argument and cannot be

taken into account

in interpreting Art. 368 when its meaning to

our mind

is clear. But as

-the argument was urged with a good

deal of force

on behalf of the petitioners and was met with equal

force on behalf of the

Union and the States, we propose to deal

with it briefly. Now, if this argument means that Parliament may

abuse its power of amendment conferred by Art. 368, all that

need

he

Said in reply is that mere possibility of abuse cannot

result

in

ceurts' withholding the power if the Constitution grants

it.

It is well-settled so far as ordinary

laws are concerned that

mere possibilLy of abuse will not induce courts to hold that the

"power is not.there. if the law is valid and its terms clearly confer

the power. · The same principle in our opinion applies to the

Constitu~ion. If the Constitution gives a certain power and its

terms are clear, there

is no reason why that power should be

withheld simply because of possibility of abuse.

If we may say

so, possibility of abuse of any power granted.

to any authority is

always there; and if possibility

of abuse is a reason for with­

holding the power, no power whatever can ever be conferred on

any authority, be it executive. legislative

or even judicial. There­

fore, the so-called fear of frightful consequences, which has been

urged on behalf of

the· oetitioners (if we hold, as we do. that the

power to amend the Constitution is unfettered by any imolied

limitations),

is no ground for withholding the oower, for we have

no reason to suppose that

Parliament on whom such power is

conferred will abuse it. Further even if it abuses the power of

constitutional amendment under Art. 368 the check in such

circumstances

is not in courts but is in the people who elect

members of Parliament. The argument for

givin;i; a limited

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GOLAKNATH )'.

PUNJAB (Wanchoo, J.)

' .

849

meaning to Art. ~68 because of possibility of abuse must there ..

fore be rejected.

The other aspect of this argument of fear

is that we should

not make the Constitution too flexible so that it may be open

to the requisite majority with the requisite ratification to make

changes too frequently in the Constitution. It

is said that the

Constitution

is an organic document for the governance of the

country and it

is expected to endure and give stability to the

institution which

it provides. That is

undoubtedly so and this is

very true of a written federal Constitution. But a perusal of

various Constitutions of the world shows that there are usually

proviw!ls for amendment of the Constitution in the Constitution

itself. This power

to amend a Constitution may be rigid or

flexible in varying degrees. Jurists have felt that where the power

to amend the Constitution

is made too rigid and the people

outgrow a particular Constitution and feel that it should

be

amended but cannot do so because of the rigidity of the

Con­

stitution, they break the Constitution, and this breakinl!: is more

often than not by violent revolution.

It is admitted by even those

writers on the

United States Constitution who are of the view

that there are certain basic features which cannot be amended and

who would thus make the U. S. Constitution even more rigid

than it

is, that howsoever rigid

t'ie Constitution may be its rigidity

will not stop the people from breaking it if they have outgrown

it and this breaking

is, generally speaking, by violent revolution. So, making our Constitution rigid by putting the in'terpretation

which the petitioners want

us to put on it will not stop the

fright­

fulness which is conjured up before us on behalf of the petitioners.

If anything, an interpretation which will make our Constitution

rigid

in the manner in which the petitioner want the amending

power in Art. 368 to be interpreted will make a violent

revolu­

tion, followed by frightfulness of which the petitioners are afraid,

a nearer possibility than an interpretation which

will make it

flexible.

It is clear that our Constitution-makers wanted to avoid

making the Constitution too rigid.

It is equally clear that they

did not want to make an amendment

of the Constitution too

easy. They preferred an intermediate course which would make

the Constitution flexible and would still not allow it to be amend­

ed too easily. That is why Art. 368 provides for special majo­

rities of, .the two Houses for the purpose of amendment of the ·

Constitution. Besides it also provides for ratification by more

than half the States

in case of entrenched provisions in the

pro­

viso. Subject to these limitations, the Constitution has been

made moderately flexible to allow any change when the people

feel that

cha'1ge is necessary. The necessity for special majorities

850 SUPlUIMIE COURT REPORTS [I 96 7] 2 S.C.R.

in eacll House separately and the necessi,J for ratification by

more than half the States in certain cases appear to us to be

s•fficient safeguards to prevent too easy change in the Constitu­

tion without making it too rigid. But it is said that in the last

sixteen years, a large number

of amendments have been made

to the Constitution and that shows

that the power to amend is

much too easy and should be restricted

by judicial interpretation.

Now, judicial interpretation cannot restrict the power

on the basis

of a political argument. It has to interpret the Constitution as it finds it on the basis of well-known canons of co:istruction and on

the terms of Art. 368 in particular. If on those terms it is

clear--as we think it is-that power to amend is subject to no

limitations except those to be expressly found in the Constitution,

courts must give effect to that. The fact that in the last sixteen

years a large number of amendments could be made and have

bt'cn made is in our opinion due to the accident that one party

has been returned by electors in sufficient strength to be able

to command the special majorities which are required under Art.

368, not only

at the Centre but

also in all the States. It is

because of this c;rcumstance that we have had so many amend­

ments in the course of the !Jst sixteen years. But that in our

opinion

is no ground for limiting the clear words of

Art. 368.

The power of amendment contained

in a written federal

Con­

stitution is a safety valve which to a large extent provides for

stable growth and makes violent revolution more

or less

un­

necessary. It has been said by t-:ixt-book writers that the power

of amendment, though it allow< for change, also makes a Con­

stitution long-lived and stable and serves the needs of the people

from time

to time. If this power to amend is made too rigid it loses its value as a safety valve. The more rigid a Constitution

tho more likely it

is that people will outgrow it and throw it

over-board violently.

On the other hand, if the Constitution is

llexible (though it may not be made too easy to modify it) the

power

of amendment provides for stability of the Constitution

itself and for ordered progress of the nation.

If therefore there

had

to be a choice between giving an interpretation to Art. 368

which would make

our Constitution rigid and giving an

interpre­

tation which would make it flexible, we would prefer to make it

flexible, so that it may endure for a long period

of time and may,

if necessary,

be amended from time to time in

accordan~e with

the pr'.lgress in the idea~ of the people for whom it is meant.

But we feel that it

is not

necessary to go 'to this extent, for that

would be entering into the field of poEtics. As we see the terms

of Art. 368, we are clearly of opinion that the Constitution­

makers wanted te make our Constitution reasonably nexible and

·that the ,interpretation that we have ~iven to Art. 368 is in

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GOLAKNATH V. PUNJAB (Wanchoo, J.) &51

consonance with the terms thereof and the intention of those who

made it. We therefore reject the argument of fear altogether.

This

brings us to the argument of starB decisis raised on behalf

cf the Union of India and the States. The argument is put thus.

After tho decision of the Patna High Court invalidating the Bihar

Land Reforms Act, 1950, Parliament passed the First Amend­

ment

to the Constitution. That Amendment was challenged in

this Court by a number of writ petitions and was upheld in

San­

k<Jri Prasad's case(

1

)

in 1951. That case practically stood un­

challenged till

Sajjan Slngh's case(') in 1964 after the Seventeenth

Amendment

was passed. Thus in the course of these fifteen years

or so a large number of

State Acts were passed on the basis of

the First Amendment by which in particular Arts. 31-A and

31-B were introduced in the Constitution. It is said that though

Sankari Prasad' s case (

1

)

has stood for less than 15 years there

have been

so many laws dealing with agrarian reforms passed on

the basis of the First Amendment

which was upheld by this Court

that

the short period for which that case has stood should not

stand in the

way of

this Court acting on the principle of stare

decisis. The reason for ·this is that an agrarian revolution has

taken place all over the colllltry after the First Amendment by

State laws passed on the faith of the decision of this Court in

Sankari Prasad's case('). This agrarian revolution has led to

millions of acres of land having changed hands and millions

of

new titles having been created. So it is urged that the un­

animous decision in

Sankari Prasad' s case (

1

), which was chal­

lenged

when the

Seventi;enth Amendment was passed and was

upheld by majority in Sajjan Singh'3 case(

2

)

should not now be

disturbed

as its disturbance would create chaos in the country,

pacticularly

in the agrarian sector which constitutes the vast

majority

of the population in this country.

We arc of opinion that there is force in this argument. Though

the period for which

Sankari Prasad's casc(

1

)

has stood un­

challenged

is not long, the effects

which have followed in the

passing of State laws on the faith of that decision, are so over­

whelming that we should not disturb the decision in that case.

It

is not disputed that millions of acres of land have

changed

hands and millions of new titles in agricultural lands have been

created .and the State laws dealing with agricultural land which

have been

passed in the course of the last fifteen years after the

decision in

Sankari Prasad'

s case (

1

)

have brougbt about an

agrarian revolution. Agricultural population constitutes a vast

majority of the population in

this country. In these circum­

stances it would in our opinion

be wrong to hold now that

(I} [1952)

S.C'.R. 89. (!) [1965] I S.C'.R. '33.

852 SUPREME COURT REPORTS

(196i] 2 SCR

Sankari Prasad's case (

1

)

was not correctly decided and thus

dis­

turb all that has been done during the last fifteen years and create

chaos ihto lhe lives of million~ of our countrymen who have

bcnetited by these laws relating lo agrarian reforms. We would

in the circumstances accept the argument on behalf of the

llnion

of India and

lhe States that this is the tinest possible case in

which the principle of

stare decisis should be applied.

On this

basis also, apart from

our view that Sankari

Prasad'.1· case (

1

)

was in

facl rightly decided, we would not interfere with that

decision now.

But

it is urged that instead of following the principle

of

stare decisis which would make the decision in Sankari Prasad's

case (') .good for all times, we should follow the doctrine of pro­

spective · over-ruling, which has been evolved by some United

Stale~ courts so that everything that has been done up to now,

including the Seventeenth Amendment would

be

~eld good but in

future it would nol be open to Parliament to ameno Part III hy

taking away or abridging any of the rights conferred thereby and,

if the argument as to implied limitations on the power to amend

is accepted. further limit the power of

Parliament to amend what

may be called basic features of the Consti1ution. We must say

that we arc not prepared to accept the doclrinc of pro;peclivc

over-ruling. We do not know whether this doctrine which it is

urged should be ap)'llicd to constilutional amendment would also

be applied to amendments

of ordinary laws. We find it difficult

to visualise what would be the effect

of this

do~trine if it is ap­

plied to ;unendment of ordinary laws. We have so far been

following in this country the well-known doctrine 1hat courts

declare law and that a declaration made by a court

is the law

of

the land and takes effect from the date the law came into

force. We would on principle be loath to change that wcll­

known doctrine and supersede it by the doctrine of prospcclive

over-ruling. Further it seems to us that in view of the provi­

sions of Art. 13 (2) it would be impossible to apply the doctrine

of prospective over-ruling in our counlry, pa.1icularly where a

law infringe> fundamental rights. Article 13(2) lays down that

all laws taking away

or abridging fundamental rights would be

void to the extent

of contravention. It has been held by

lhis

Court in Deep Chand v. The Stare of Uttar Pradesh(

2

)

that a law

made after the Constituiton came into force which infringes

fundamental rights

is a

still-born Jaw and that the prohibition

contained

in Art. I

3(2) went to the root of the Slate power of

legislation and any law made in contravention of that provision

was void

ab inirio. This case has been followed in Mahrndra Lal laini v. The Stare of Uttar Pradesh('). In the face of these

(1) (1952) S.C.R. 89. (2) [1959) Supp. 2 S.C R. 8.

(3) (1963) Supp. I. S.C.R. 912.

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GOLAKNATH v. PUNJAB (Wanch~o. I.) 853

decisions it is impossible to apply the principle of p.-ospective

over-ruling in this country so far as ordinary laws arc concerned.

Further, if the word "law" in Art. 13(2) includes an amend­

ment of the Constitution, the same pr;ncipfo will apply, for that

amendment

wou Id be still-born if it infringes any fundamental

rights

wntaineci in Part III. In these circumstances, it would be

;mpossible to apply the principle of prospective over-ruling to

oonstitutional amendments also. On the other hand, if the word

•'·Jaw"' in Art. 13(2) does not include an amendment of the Con­

:;titution. then there is no necessity of applying the principle of

prospective over-ruling, for

in that

ca>e unless some limitation~

on the power of amendment of the Constitution are implied the

amendment under Art. 368 would not be liable to be tested under

Art. 13(2).

We are therefore unable to apply the doctrine of

prospective over-ruling

in the circum'stances. Further as we are

of opinion that this is the fittest possible case in which the prin­

ciple of

stare decisis applies, we must uphold Sankari

Prasad's

case(') for this reason also.

Lastly

we would refer to the

following observations in

Sajjan Singh's case(

2

)

(at pp. 947-48) with respect to over-ruling

earlier judgments of this Court and specially those which arc

unanimous, like

Sankari

Prasad's case(') :-

"It is true that the Constitution does not place any

restriction on our powers to review our earlier decisions

·Of even to depart from them and there can be no doubt

ih\lt in matters relating to the decision of constitutional

points which have a significant impact on the funda-,

mental rights of citizens, we would be prepared to

review our earlier decisions in the interest of public

good ............. Even so, the normal principle that

"judgments pronounced by this Court would be final,

cannot be ignoreq and unless considerat'ons of a sub-

stantial ~~~ compelling character make it necessary to

do so, we should 'be slow to doubt the correctness of

previous dccis'ions or· to depart from them.

"It is universally recognised that in regard to a

large number

of. co.nstjtutional problems which are

brought before this Court for its decision. complex and

difficult questions arise and on many of such

ques­

tions two views are possible. Therefore, if one

view has been taken by this Court after mat11re

deliberat;'.1n. the fact that another Bench is in~lined

to take a differ~nt view may not justify the Court in re­

considering the earlier decision or in departing from

it. . . . . . . . . . . . . . . . Even so, the Court should be re-

il I [1952) S.C.R. R9. (1) [1965] I S.CR 933

L3Sup. CJ 167 -_1)

•

854 SuPUMB COURT UPOl.TS (1967] 2 S.C . .t

h.1ctant to accede to the suggestion that its earlier deci­

sions should· be light-heartedly reviewed and departed

from. In such a case the test should be : is it absolutely

necessary and essential that the question already decided

should be reopened

? The answer to

this question

would depend on the nature of the infirmity alleged in

the. c.arlier decision. its impact on public good, and the

vahd1ty and compelling character ot the considerations

urged in support of the contrary view.

If the said

deci­

sion has been followed in a large number of cases,

that again

is a factor which must be taken into

account."

A similar view was taken in the Kesha-1 Mills Company

Limited v. Commissioner of Income-tax,(') where it was observ­

ed that-

" ...... before a previous decision is pronounced

to be plainly erroneous, the Court must be satisfied

with a fair amount of unanimity amongst its members

that a revision of the said view is fully justified."

These principles were applied in Saiian Singh's case(') and it

was observed that if Sankari Prasad's case(') were to be over­

ruled, "it would lead to the inevitable consequence that the

amendments made in the Constitution both in 1951 and 1955

would

be rendered invalid and a large aur. .ber of decisions

deal­

ing with the validity of the Acts included in :he Ninth Schedule

which have been pronounced by different High Courts ever since

the decision of this Court in Sankari Prasad's case(') was dec­

lared, would also be exposed to serious jeopardy."

The majority in that case therefore was not in favour of

reviewing Sankari Prasad' s case(') even so in view of the argu­

ment raised and the importance of the question it considered

the arguments against that decision and came to the conclusiO!I

itself that that case was rightly decided. We may add that besides

ao many cases in the High Courts there have been a large number

of cases in this Court to which it is unn=ary to refer where

on

the faith of various amendments made in the Constitution,

particularly the First, the Fourth and the Sixteenth, amending

fundamental rights,

this Court has

upheld the validity of various

Acts on the basis of these amendments. Further we would be

very reluctant to over-rule the unanimous decision in Sankari

Prasatfs

case(')

or any other unanlmous decision by the slender

majority of-one in a larger Bench constituted for the purpose.

We say this with great respect and would hold that apart from

the pnnciple of

stare decisis we should not say that the

(1)

(1965) 2-S.C.R. 908. (2) [t96SJ t S.C.R. 933

(3) [t952] S.C.R. 89

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GOLAKNATH v. PUNJAB (Hidayatullah, /.) 855

unanimous judgment in Sankari Prasad's case(') was wrongly

decided b}' such a slender majority in this Special Bench.

We therefore hold that Sankari Prasad's case(') was correct!)·

decided and that the majority in Sajjan Singh's cast:(

2

) was cor­

ttiet in following that decision. We would follow the decision

in Sankari Prasad's case(') even now as in our opinion it was

correctly decided. Following that decision we hold that the

Seventeenth Amendment

is good.

In view of this decision it is unnecessary to refer to other

arguments raised with respect to the

two petitions challenging the

Mysore Land Reforms Act.

In our view therefore all the three petitions should fail and

we

would dismiss them. In the circumstances we would pass no

order

as to costs.

Hidayatullah,

J. In these three writ petitions, the facts of

which appear

in the two judgments just delivered, the validity

of the Punjab Security of Land

Tenure.~ Act, 1953 an~ the

Mysorr Land Reforms Act, 1953, is principally involved. Since

these Acts are protected by the Constitution (Seventeenth Amend­

ment) Act, 1964, the validity of the constitutional amen.dment i'

also questioned. l11crcfore, a much larger field must be iraversed

because of the claim of the State that no part of the Constitution

from the Preamble to the Ninth Schedule, is beyond the provi­

sion for amendment contained in Art. 368. The article forms

the Twentieth Part of the Constitution and is said to be a code

by itself in which reposes a sovereign power, transcending, any­

thing elsewhere in the Constitution. The State submits ' that

(except as stated

in the article) there are no limitations on the

amending power and denies that there arc any implied restric­

tions. It claims, therefore, that an amendment of the Constitution

or of any of its part can never be a justiciable issue

if the pro­

cedure for amendment has been duly followed. In this claim no

cxcPution is made-the Preamble, the Fundamental Rights, the

guaranteed remedy to uphold them

all of them severally and to­

gether are said to

be capable of being partially or wholly abrogated

by an amendment Looked

at from this point of view the Seven­

teenth Amendment Act not only must be valid but also beyond

the power of the courts to question. The petitionc

;, on the other

hand, contend that this

is to deny the real importance

and inviol­

~bility of the Fundamental Rights which the Constitution itsell.

through certain articles, has made paramount even to Art. 368.

lt is these

question.~ which fall for consideration, before we can

decide whether the two State Act~ are valid or not.

(I) !1952] S.C.R, R9. (ll [1965] I S.C.R. 931.

85h SUPl.EME COUllT l.BPOl.TS [ 196 7) 2 S.C.I..

The same questions were: before this Court on two earlier

<>ccasions. They arose for the first time immediately after the

Constitution (~iN Amendment) Act, 1951 was adopted and be­

c.ame the ~uh1ec~ of a decision of this Court reported in .~ri

.~111/;t:n Prasad .S111g'1 Dco v. Unt'on of India('). There Patanjali

~istn J. spcakmg tor lf:irilat K:mb C.J., Mukherjca, Das and

Chandrasekhara Aiyar, JJ. and himself upholds the First Amend­

ment on the grounds that the power rnnfcrred by Part XX is

COt1'titucnt, para1110unt and sovereign :md is. therefore, not sub­

jc-:t to Art. 13(2) which prohibits the making '1f ordinary laws

tending to abridge or take away Fund:uncnt:d Rights. The

4uestions were again before the Court in Sajju11 Singh v. State of

/l,1jastha11 (') when the Seventeenth Amcndmer,, was impugned.

The authority of Sairkari Prasad's case(') was the mainstay of

the argument in support of the validity of the new amendment.

This time the Court was not unanimous although the Court as a

whole did not strike

down

tht Act. Three opi.nions were <.kliver­

ed : by Gajendragadhr. C.J. on b;:half of Wanchoo and

Raghubar Dayal. JJ. and himsdf, by Mudholkar, J. and by me.

I found the reasoning in Sankari Prasad'.• case(') to be unaccept­

able, although for rcas-ons which I shall give. I refrained from

expressing a-final opinion. Mudholkar. i: in his opinion sup­

ported me with addit<onal and forceful reasons but he aim did

not express himscl[ finally on the broader question. I closed

my opinion with the following obscrvatiom :-

"I would require stronger reasons than those given

in Sankari Prasad'.1· case(

1

)

to make me accept the view

that Fundamental Rights were nor

really fundamental

but were intended to be within the powers of amendment

in common with the other parts of the Constitution

anc! without the concurrence of the State,. No doubt

Art. 19 by clauses numbered 2 to 6 allows a curtailment

of rights in the puhtic interest. This shows that Part

III is not static. It visualises changes and progress

but at the same time it preserves the individual rights.

There is har:lly any measure of reform which cannot be

introduced reasonably. the guarantee of individual

liberty notwithstanding.

Even the agrarian reforms

could have been partly carried out without Article

31-A and 31-B but they would have cost more to the

public exchequer. The

rights of society arc made para­

mount and they arc placed above those of the indivi­

dual.

This is as it should be. But restricting the

Fundamental Rights hy resort to els. 2 to 6 of Art. 19 is

11 l [!952J S.C.R. 89. (2) [19651 t S.C.R. 933.

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A one thing and removing the rights from the Constitution

or debilitating them

by an amendment is quite another.

This

is the implication of

Sankari Prasad's case('). It

is true that such things would never be, but one is con­

cerned to know if such a doing would be possible."

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"The Constitution gives so many assurances in

Part III that it would ho difficult to think that they were

the playthings of a special majority. To hold this

would mean

prima facie that the most

solei..n parts of

our Constitution stand on the same footing

as any other

provision and even on a

less firm ground than one on

which the articles mentioned

in the proviso stand.

The anomaly that Art. 226 should be somewhat

pro­

tected but not Art. 32 must give us pause. Article 32

does not erect a shield against private conduct but

against state conduct including the legislatures (Sec Art.

12). Can the legislature take away this shield?

Perhaps by adopting a liberal construction of Art. 368

one can say !hat. But I am not inclined to play a

gran11narian 's role. As at present advised T can only

say that the power to make amendments ought not ordi­

narily to be a means of escape from absolute constitu­

tional restrictions."

My opposition (lest one misunderstar.ds its veridical charac­

ter) appears to be cautious and even timid but this was becaus,:

it was attended by an uneasy feeling that I might have missed

some immanent truth beyond what was said in Sankari Prasad's

case('). The arguments then were extremely brief. After hear­

ing full arguments in this case, which have not added to the

reasoning of the earlie!· cases, I am nc: satisfied that the reasons

arc cogent enough for me to accept them. I say it with respect

that I felt then,

as I do so even more strongly now, that in the

two earlier cases, the result was reached by a mechanical

juris­

prudence in which harmonious construction was taken to mean

that unless Art. 368 itself made an exception the existence of

any other provision indicative of an implied limitation on the

amending power, could not be considered. This was really to

refuse to consider ·any argument which did not square with the

a pnori view of the omnicompetence of Art. 368. Such reason­

ing appears to me to be a kind of doctrinaire conceptualism based

on an arid textual approach supplemented by one concept that

an amendment of the Constitution is not an exercise of legislative

(I) [1952] S.C.R. 89.

858 SUPl.BMB C:O~T IUIPOJ.TS [1967] ~ S.C.R.

power but of constituent power and. therefore. "n amendment o{

the Constitution is not law at all as contemplated by Art. 13(2).

I

am reminded of the words of Justice Holmes that

"we must

think things and not words". The true prinrip!c is that if there

arc two provisicns in the Ccnstitution which seem to be hostile,

iuridical hermeneutics requires the

Court to interpret them by combining them and not ry destroying one with the aid of the

other. No part in a Constitution is superior to another part

unless the Constitution i•sclf says so and there is no accession

of strength to any provision by calling it a code. Portalis, the

great French Jurist (who helped in the making of the Code

Napoleon) supplied the correct principle when he said that it is

the context of the leg3J proYisions which serves to illustrate the

meaning of the different parts, so that among them and between

them

there should be correspondence and harmony.

We ha\'e two provisions to

reconcih Article 368 which says

that

the Constitution may be

amended by followi.1g this and this

procedure, and Art. 13(2) which ~ays, the State shall not make any

law which takes away or abridges the rights conferred by Part III

and that any law made in contravention of the clause •iall, to

the extent of the contravention. he void. The question, therefore,

is: docs this create any limitation upon the amending process?

On the answer to this question depends the solution of all the

problems in this case>.

It is an error to view our Constitution as ;r it were a mere

organisational docum~nt by which the people established the

structure and the mechanism of their Government. Our Constitu­

tion is intended to he much more because it aims at being a

wcial document in which the relationship of society to the indi­

vidual and of Government to both and the rights of the minorities

and the backward classes arc clearly laid down. This social

document is headed hv a Preamble* which epitomizes the prin­

ciples on which the Government is intended to function and these

principles arc later e~"andcd into Fundamental Rights in Part ill

and the Directive Princinlcs of Policy in Part IV. The former

are protected but the latter arc not. The former represent the

---

----..~PREAMBLE- -WE. THF pcopt E OF l~DIA. h:\vinq solemnly rc-so1Vt'd to

eonstitut< Ind;, into a SOVrREIGN DEMOCRATIC R[PUBL!C and to

secu .. c <\II its citii:rns:

JUSTICE, snci:>I, economic :tnd political;

LIBERTY "r thl)ugh~. rxp rssion. belief, faith and wo;ship:

EQU.\L'TY ,,f status :ind of opp:J~tunity; and to promote among them all

FRATERNI ;y assu;ing the dignity of the individual and the unity ot

Nation:

IN OUR C'O'<STITUrNT ASSEMBLY this twcnty-s;xth day of

Novembo , 949, d, H

0

'l. c.,y ADOPT, ENACT AND GIVE T·J OUR­

SELVES THIS CONSTITUTION."

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GOLAKNATH v. PUNJAB (Hidayatul/ah, J.) H59

limits of State action and the latter are the obligations and the

duties of the Government

as a good and social Government

Why· was it necessary to have the Fundamental Rights at all

and make them justiciable ? As we seem to be forgetting our

own history so soon let me si:y that the answer lies there: The

Nationalist Movement and the birth of the Indian National Con­

gress in 1885 were the direct result of the discriminatory treat­

ment of the Indians in their own country. The demand for the

guarantee of Fundamental Rights had unfortunately

to be made

then to a foreign ruler and it appeared in the Constitution of

India

Bill framed by the Indian National Congress ten years later. All

that is valuable to an Individual in civilized society, including

free speech, imprisonment only by a competent authority, free

state education, etc. were claimed therein. Resolutions of the

Congress since then reiterated this demand and the securing of

Fundamental Rights in any future Constitution became one of the

articles

of faith. To cut the narration short, the main steps may

only be mentioned. Mrs. Besant's Commonwealth of India Bill

1925 with its seven fundamental rights (the precursor of Art. 19),

the Madras Congress Resolution of

1927-"a constitution on the

basis of declaration of rights"-, the Nehru Report-"it is obvious

that

our first care should be to have the Fundamental Rights

guaranteed in a manner which will not permit their withdrawal

in any

circ~mstances"-, the draft article in the Nehru Constitu­

tion-"No person shall be deprived of his liberty, nor shall his

dwelling or property be entered, requisitioned or confiscated save

in accordance with

law"-, the Independence Resolution of 26th

January, 1930--"We believe that it is the inalienable right of

the Indian people, as of any other people, to have freedom and

to enioy the fruits of their toil and have the necessities of life, 90

that they may have full opportunities of growth"-. the Karachi

Resolution on Fundamental Rights, Economic and Social Change

(1911), the Sapru Report (1945) which for the f.rst time distin­

guislied between justiciable and non-justiciable rights, the sug­

gestion of the Cabiqet Mission for the constitution of an Advisory

Committee on Fundamental and Minority Rights, and, lastly the

Committee on Fundamental Rights of the Consdtuent Assembly,

are just a few of the steps to be remembered. The Fundamental

Rights and the Directive Principles were the result.

Fundamental laws are needed to nake a Government of laws

and not of men and the Directive Principles are needed to Jay down

the objectives of a good Government. Our Constitution was not

"the cause but the result of political and personal freedom". Since

Dicev had said that "the proclamation in a Constitution or Charter

of the right to personal freedom, or indeed of any other right,

gives of itself but slight security that the right has more than a

860 SUPREME COURT REPORTS (1967) 2 S.C.R.

,

nominal exis.tence",(1) provision hat! to be made for guaranteeing

them and to make them justiciable and enf.orceable. This result

is

reachefl. by mean,s of Arts. 12, 13, 32, 136, 141, 144 and 2T6.

The High' GQ)lrts .and finally this Court h~ve been, made the

Judges of whetlier any legislative or executive action on the part

of the State considered as comprehensively as is possible, offends

the Fundamental .n.ight' and Art. 13(2) declares that leg~slation

which so offends is to be deemed to be void. It is thus that

Parliament cannot today abridg~ or t_a~-~!!Y- a single Funda­

menta) R1ghr even by a unanimous vote m both the r:hambers,

But 'on the argwnent of the State it has only 'to change the title

of the same Act lo an Amendment of the Constitution Act :t)lc'.

then a majority of the total strength and a 2/3rds majority of tb"

members p1escnt ,and voting in each House may remove not only

any

of the Fundamet)tal Rights but the whole Chapter giving

them. And this

is said to be _possible because of Art. 368 and

its

gen:ral

langti:tf!~

which .. it is claimed, makes no exception in its

text and. therefore, no ~xception can be implied. It. is obvious

that if an /\ct amending the Constitution is treated as r1 law i1

must also be subject to the provisions of Art. 13(2). Si11ce the

'definition of the word 'law', makes no exception a strenuou::,

effort i~ n1ade on the basis of ar~un1cnt und authority to \.!Stab1!s};i

that a constituent power does not re$trlt in a law in the ordinaf.y

sense. Distinction 'is thus made between laws made ordinarily

that

is to say. froin day to day by ordinary majority and'

Jaw•··

made occasionally for the amendment of the, Constitution by "

slightly cnhanc,cd majority. In our Constitution this distinction

is not valid in the eye' of Art. 13(2).·

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It is not es.sential. of course, that a difference must alwayf·

exi$t in the procc'dtire for the exercise of constituent and ordinary

legislative power One has not to go far to find the example of F

a country

in

whir'· constitutional law as such may be made by the

same agency whirh makes ordinary Jaws. The most 01,1tstanding.

example is that of England about which de Tocqupville observed :

"the Parliament has an. acknowledged right to

modify the Constitution; as. therefore, the Constitution

may undergo perpetual changes, it does not

in reality

exist; the

Parliament is at once a legislative and a con­

stituent :issembly:"(

2

)

Of courBe, the dictum of de Tocqueville that the En!;lish Con­

.stitution "el!e n'•xi<te •·oint" (it does not exist) is far from accu-

-----------

(1) Dic.:y: _"la'w of tl1e ro1rstilution" t.lth F,dn. p. 2 17.

(2) lntrod11c1io11 to th'! 3tudy of the L(-111 .. of the Constitution by A.'./. n;c•:y?

Tenth Edp. P-~8 q•1')ti'1:~ f·o1n o~l!Vr'S compl·~tcs (14th ed:, 1864) Ve-I. x

(Den1ocrat(e

en Arn--riqttel,

pp. 166, 167. .

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GOLAKNATH v.

PUNJAB (Hidayatu/lah, J.) 861

rate. There is a vast body of constitutional laws. in England

which is written and statutory but it is not all found in one place

and arranged

as a written Constitution usually is. The Act of

Settlement

(1701), the Act of Union with Scotland (1707), the

Act of Union with Ireland (1800), the Parliament Act (1911),

the Representation of the Peoples Acts of 1832, 1867, 1884,

1918, 1928 and 1948, the Ballot Act (1872), the Judicature Acts

1873, 1875 and 1925, the Incitement to Disaffection Act (1934),

His Majesty's Declaration of Abdication Act (1936), the Regency

Act (1937) and the various Acts setting up different ministries are

examples of what will pass for constitutional law under our sys­

tem('). The Bill of Rights (1689) lays down the fundamentalrule

in England that taxation may not be levied without the consent of

Pai:Jiament which in our Constitution has its counterpart in Arf.

265. In our Constitution also the laws relating to delimitation

of constituencies

er allotment of seats to such constituencies made

or purporting to be made under Art.

327 or Art. 328, by reason

of the exclusion of the powers of the courts to question them, are

rendered constitutional instruments. Other examples nf constitu­

tions which,

in addition to consti'ution. proper, contain certain

ordinary legislation having constitutional qualities,

also

exist.(')

What then is the real distinction between ordinary law and

the

law made in the exercise

of constituent power., I would

say under the 'ehcme of our Con,tilution none al all. Thb

distinction has been attempted to be worked out by 'everal

authors. It is not necessary ·to quote them. Taking the result>

obtained by Willoughby(") it may be said that the fact that "

Constitution is written as a Constitution is no distinction because

in Britain constitutional law is of both kinds and both parts co­

exist. The test that the Constitution requires a different kind of

procedure for amendment, also fails because

in Britain

Parlia­

ment by a simple ma;ority ma:Ces Jaws and also amends con­

stitutional statutes. In our Constitution too,

in spite of

t.hc claim

that Art. 368

is a code (whatever is meant by the word

"code"

here), Arts. 4, 11 and 169 show that the amendment of the Con­

stitution can be by the ordinary

Jaw making procedure. By this

method one of the legislative limbs in a

State can be removed or

created. This destroys at one stroke the claim that Art. 368 is

a code and also that any special method of amendment of the

Constitution is fundamentally necessary.

----------------

(1) The list is raken from K. C. Wh•'are's: "The Stqtttte of JVestminster and

Do1ni11ion Status" (4th Edn) p. 8. Diec)' and others give di°ffcrcnt list.

(2) Sec Constitutions or Austria, Honduras. Nic8.ragu~. Peru, Spain and Sweden

rnnong oth'.~fS. The Constitution nr Spain in particular is in S"Vcrnr

ln~tn1mcn

1

s. The Cons•itution of Ausiria (A"t. 149) n1ak•·s special

n1cntio~ of these cnn<:;titutional inst· uincnts.

(3) Tagore Law Lcc!urcs (1924) p. 83.

862 SUPllBMB COUJlT llEPOllTS

(1967) 2 S.C.ll.

The next test that the courts must apply the Constitution in

preference to the ordinary law may also be rejected on the anal~

of the British practice. There, every statull" has equal standing.

Therefore, the only diffe;ence can be said to arise from the fact

that constitutional laws are generally amendable undrr a process

which in varying degrees, is more difficult or elaborate. This may

give a distinct character to the law of the Constitution

but it

does not serve

to distinguish it from the other laws of the land for

purposes of Art. 13(2). Another difference is that in the v.-:itten

constitutions the form and power of Government alone are to he

found and not rules of private law as is the ease with ordinary

laws. But this

is also not an invariable rule. The

American

Constitution and our Constitution itself are outstanding examples.

There are certain other differences of degree, such as that ordi­

nary legislation may be tentative or temporary, more detailed

or secondary, while the Constitution

is intended to be

pcrr.:1anent,

general and primary. Because it creates limitations on the ordi­

nary legislative power, constitutional law in a sense is funda­

mental law, but if the legislative and constituent processes can

become one,

is there any reason why the result should be regarded

as law in the one case 1nd not in the other 7

On the whole,

therefore, a~ observed in the American Juljjspruden.:e--

"It should be noticed however that a statute and a

constitution, though of unequal dignity are both laws

and each rests on the will of the people

........

"(')

A Constitution is law which is intended to be for all time and is

difficult to change so that it may not be-subject to "impulses of

majority" "temporary excitement and popular caprice or pas­

sion".(').

I agree with the authors cited before us that the power of

amendment must be possessed by the State. I do not take a

narrow view of the word "amendment" as including only minor

changes within the general framework. By an amend!'llent new

mal!er may be added, old matter removed or altered. I also

concede that the

reason for the amendment of the

':onstitution

is a political matter although I do not go as far as some Justices

of the Supreme Court of the United States did in Coleman v.

Mi/ler,(

1

) that the wLole process is "political in its entirely from

suhmission until an amendment becomes part of the Constitution

and

is not subject to judicial guidance, control or interference at

any point." There are fundamental differences between our Con-

(t)

Amer/canJurisprurence Vo!. 11 s~ction 3.

(2) Amendment is cxn-essly called a legislative process in the Constitutions of

Colombia. Costa Ric1, Hungary, Panama and Peru. In Portugal the ordinary

legislatures enjoy constituent powers every JO years.

(3) 3 l7 U.S. 443 (83 L. I'd. 138S).

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OOLAKNAm v. PUNJAB (Hidayatullah, /.) 863

stitution and the Constitution of the United States of America.

Indeed this dictum of the four I ustices based upon the case of

Luther v. Borden (

1

)

has lost some of its force after Baker v.

Carr(').

A R~ublic must, as says Story, ( •) possess the means for

altering and improving the fabric of tne Governmt:nt

so as. to

promote the happiness and safety

of the people. The power is

also needed to disarm opposition and prevent factions over the

Constitution. The power, however;

is not intended to be 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 purpose of removing express or

implied restrictions against the

State.

Here I make a difference between Government and State

which I shall explain presently. As Willoughby(') points out

·constitutional law ordinarily limits Government but not the State

because a constitutional law is the creation of the State for its

own purpose. But there is nothing to prevent the State from

limiting itself. . The rights and duties of the individual and the

manner in which such rights are to

be exercised and enforced

are ordinarily

to be· found in the laws though some of the Cons-

. titutions also

fix

them, It. is now customary to have such rights

guaranteed in the COnstitution. Peaslee,(") writing in 1956 says

that about 88% of the national Constitutions contain clauses

respecting individual liberty and fair legal process; 83% respect­

irig freedom of speech and the press; 82 % respecting property

right; 80% respecting rights of assembly and association;

80% respecting rights of conscience and religion; 79% res­

pecting secrecy of correspondence and inviolability of domi­

cile;

78% respecting education; 73% respecting

eau1lity;

64% respecting righ! to petition; 56% respecting laoour; 51 %

respecting social security; 47% respecting rights of movement

within, and to and from the nation; 47% respecting health 1nd

motherhood; and 35 % respecting the non-retroactivity e>f laws.

In some of the Constitutions there is an attempt to put a restric­

tion against the State seeking to whittle down the rights conf"rroo

on the individuals. Our Constitution is the most outstanding

eumple of this restriction which is to be found in Art. 13(2).

The State is no doubt legally supreme but in the supremacy of its

powers it may create impediments on its own sovereignty. Gov­

ernment is always bound by the restrictions created in favour of

Fundamental Rights but the State may or may not be. Am

0nd­

ment may be open to the State ~ccording to the procedu•

0

lqid

(I) 7 How. I (12 L. Ed. 58). (2) 369 U. S. 186 (7 l. Ed. 2d '-331.

(3) C<Jmmentaries on the Constitution of the United States (1833) Vol f"'! pp.

6116-687. .

(') Tagore Law Lectures, p. 84.

(') Constitutions of Nations, Vol. !(2nd Edn.) p. 7.

864 SUPREME COURT Rl!POll.TS [I967J 2 s.c.11..

down by the Constitution. There· is· nothing, however, to prevent

the Sta.:e from placing certain matters outside the amendi}lg pro­

cedure ('). Examples of this exist irl several Constitutions of

the world : see Art. 5 of the American Constitution; Art. 95 of

the Constitution of Frar.~e; Art. 95 of the Constitution of Finland;

Art. 97 .of the Constitution

of Cambodia; Art. 183 of the

C<>nsti­

tution of Greece; Art. 97 of the Japanese Constitution; Art. 13'!.

of the Italian Constitution, to mention only a few. ..,

1

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When

this happens the ordinary procedure of aniendment

ceases to apply. The unlimited cqmpetence (the kompetenz­

.kompetenz

of the Germans) does not flow from the amendatory

process.

Amendmeqt can then be by .a fresh constituent body.

To attempt to do this otherwise is to attempt a revolution. I dq

not known why the word "revolution". which I have used before.

should evoke in some persons an image of violence

and

subver­

sion. The whole America:i Constitution was the result of a

bloodless revolution

and in a sense so was ours. The adoption

of the whole Constitution and the adoption of an amendment to

the Constitution have much in common'.

An amendment of the

Constitution· has been aptly called a Constitution in little and the

same question arises whether it is by a legal process or by revo]u'.

'tion. There is no :bird alternative. An amendment, which re­

peals the earlier Constitution, unless legal, is achieved by revolu­

tion. As stated in the American Jurisprudence :

· "An attempt by the majority to change the funda­

mental law in violation of self-imposed restrictions is

unconstitutional and revolutionary", (2)

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There are illegal and viol~1t revolutions' and illegal and peaceful

revolutions. Modification of Constitution

can only be by the. F

operation of a certain number of wills acting on other wills. The

pressure runs through a broad spectrum, harsh at . one cn.J and

gentle

at the other. But whatever the pressure may be, kind or

cruel, the revolution is always there if the change is not legal.

The

difference is orie of method, not of kind. Political thinking start~

from the few at th·e top and works downward ·more often than in G

the reverse direction.

It is wrong to think that masses alone.

called

"the people" after Mazini, or "the proletariate" after Marx.

begin a revolutionary change. Political changes are always pre- J

ceded l'>y changes in. thought in a few. They may be out~ide the ~

(!) In t'1-; C'll•ti~1t'i ''l of Hlndu-u ... p·lrtia! ~u11cnt.l1ncnt vnly ls possible. Fe)!"

a compT,.t·· rimcndin.'nt n. Constituent Assembly hns 10 b~ convokrd. ln Ii

th•! C'ln<;litHti'ln of B: lzil, th·: C\1ns!itution cannQ,t be :.nnr.nded wh..::r.

then· i!' a S!J ·: or S"igc (our en,crg~ncy). [11 T11rkt:y :1n a1n•:ndn1cTH ,.;-

A..rtick [ ca!1not even be p ·oposcd. t

('l Vol. 12. &cti~n 25 pp. 629-6'.JO.

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GOLAKNATH v; PUNJAB (Hidayatullah, J.) 86S

Government or in it. It is a revolution nevertheless, if an attempt

is made to alter the will of the people in an illegal manner. A

revolution

is successful only if there

is consent and acquiescence

and a failure if there

is not. Courts can interfere to nullify the revolution~.ry change because in all cases of revolutiOn there is

infraction of existing legality. It is wrong to rlassify as revolu­

tion some thing coming from outside the Government and an

illegality corrnritted by the Government against the Constitution

as evolution. I am mindful ·of the observations of Justice Holmes

that-

"We need education in the obvious to learn to

transcend -our own convictions and to leave room for

much that we hold dear to be done away with short of

revolution, by the orderly change of law."{

1

)

But the problem we are faced with is not an orderly change of

law but of a claim

to a

revolution·ary-change against the vitals of

the Constitution. In such a case the apprehension is that demo­

cracy may ~ lost if there is no liberty based on law and law based

on equality. The protection of.the Fundamental Rights is neces­

sary

so that we may not walk in fear of democracy itself.

· Having assumed the distinction between Government and

State let me now explain what I mean

by that distinction and what

the force of Art.

13(2)" in that-context is. I shall begin first by

reading the pertinent article. Article

13 ( 2), which I quoted

earlier, may again be read here :

"13.

(2) Tue· State shall not mak.e any law whil::h takes

away or abridges the rights conferred

by this

Part and

any law made in contravention of

this clause shall. to

the extent of contravention, be

void."

The definition of the State in Art. 12 reads :

".12. In this Part, unless the context otherwise re­

quires, "the State" includes the Government and Parlia­

ment of India and the Government and the Legislature

of each of the States and all local or other authorities .

within the territory. of India or under the control of the

Government of India."

The State is the sum total of all the agencies which are also indi­

vidually mentioned in Art.

12 and by the definition all the parts

severally are

also included in the prohibiticn. Now see how

'lnw'

i• rlefined :-

"13.

(I)

The Mind anJ Fu.1th of .h1-.ticc llohncs 'P· 1CJO.

&66 SUPJlEMB OOUllT UPOllTS (1967) 2 S.C.ll.

(3) In this article, unless the context otherwise

requires,-

( a) "law" includes any ordinance, order, bye-law,

rute, regulation, notification, custom er usage

having

in the territory of India the force of

:aw;"

A

In Sajjan Singh's case(

1

)

I said that

1f am_.ndments of the B

Constitution were meant to be excluded from the word "law" it

was the easiest thing to add to the definition the further words

"1-ut shall not include an amendment of the Constitution". It is

argued now before us that this was not necessary because Art. 368

does not make any exception. This argument came at all stages

like a refrain and

is the

real cause of the obfuscation in the oppo-, c

site view. Those who entertain this thought do not pause to

consider : why make a prohibition against the State ? As Cooley

said:

"there never was a republican Constitution which

delegated to functionaries

all the latent powers which lie dormant in every nation and are boundless in extent

and incapable of definition."

lf the State wields more power than the functionaries there must

be a difference between the State and its agencies such as Govern­

ment, Parliament, the Legislatures of the States and the local and

other authorities. Obviously, the State means more than any of

these

or all of them put together. By

making the State subject

to Fundamental Rights it is clearly stated in Art. 13 (2) that any

of the agencies acting alone or all the agencies acting together are

not above the Fundamental Rights. Therefore, when t!Je House

of the People or the Council of States introduces a Bill for the

abridgement of the Fundamental Rights, it ignores the injunction

against it and even if the two Houses pass the Bill •J1e injunction

is next operative against the President since .he expression

"Govemmen< of India" in the General Oauses Act means the

President of India. This is equally true of ordinary laws and

laws seekin~ to amend the Constitution. The meaning of the

word "State' will become clear if 1 draw attention at this stage to

Art. 325 of the Constitution of Nicargua, which reads as

follows:-

"325. The agencies of the Government, jointly or

separately, are forbidden

to suspend the Constitution or

to

restrict the rights granted by it, except in the cases

provided therein."

In our Constitution the agencies of the State are controlled jointly

and separately and the prohibition is against the whole force of

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(!) (1965] I S.C.R. 933·

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GOLAKNATH v. PUNJ'AB (Hidayatullah, /.) 867

r/re State acting either in its executive or legislative capacity. The

control

of

the Executive is more important than even the Legisla­

ture. In modern politics run on parliamentarj democracy the

Cabinet attains a position of dominance over the Legislature. The

Executive, therefore, can use the Legislature as a means of secur­

ing changes in the laws which it desires. It happened in Germany

under Hitler.

The fact has been noticed by numerous writers for

example, Wade

and Philips('),

Sir Ivor Jennings('), Dawson('),

Keith(') and Ramsay Muir(•). Dawson in particular said that

a Cabinet

is no longer responsible to the Commons but the

Com­

mons has become instead responsible to the Government lvor

Jennings added that if a Government had majority it could always

secure the legislation. The others pointed out that the position

of the Cabinet towards Parliament tends to assume more

or

less

dictatorial powers and that was why people blamed Government.

this is to say, the Cabineli rather than Parliament for ineffective

and harsh laws.

This is true of our country also regarding administration and

legislation. Fortunately, this

is avoided at least in so far as the

Fundamental Rights are concerned. Absolute, arbitrary power

in

defiance of Fundamental Rights exist nowhere under our

Constitution, not even in the largest majority. The people's re­

presentative!' have, of course, inalienable and undisputable right

to alter, reform or abolish the Government in any manner they

think fit, but the declarations of the Fundamental Rights of the

citizens are the inalienable rights of the people.

The extent of

the

power of the rulers at any time is measured by the Fundamen­

tal Rights. It is wrong to think of them as rights within the Par­

liament's giving or taking. Our Constitution enables an indivi­

dual to oppose successfully the whole community and the State

and claim his rights. This is because the Fundamental Rights

are so safe-guarded that within the limits set by the Constitution

they

are inviolate. The Constitution has

itself_said what protec­

tion has been created round the person and prope_rty of the citi­

zens and to what extent this protection may give way to the gene­

ral good. It is wrong to invoke the Directive Principles as if

there is some antinomy .between them and the Fundamental

Rights. The Directive Principles Jay down the routes of State

action but such action must avoid the restrictions stated in the

Fundamental Rights. Prof. Anderson (

8

) taking .he constitu­

tional amendments, as they have teen in our country, considered

the Directive Principles to be more potent than the Fundamental

(1) Constitutional Law, 6th Edn. p. 27.

(2) Parliament (1957) pp. 11-12.

(3) Government of Canada (1952) Chapter XIX.

(4) An Introduction to British Constitutional

Law

(1931),p,48.

(S) How Britain is Governed p. 5, 6.

(6) Changing Law in Developing Countries, pp. 88, 89.

868 SUPREME COURT 11.EPOJ.TS (1967] 2 S.C.R.

Rights. That they arc not, is clear when one takes the Funda­

mental Rights with the guaranteed remedies.

The Directive

Principles arc not justiciable but

. the Fundamental Rights are

made justici:ible. This gives a judicial control and check over

State action

cve11 within the four corners ot the Directive Princi­

ples.

lt cannot be conceived that in following the

. Directive

Principles the Fundamental Rights (say for example. the equality

clause I can be ignored. If it is attempted. then the action is

CGpabk of being struck. dow!1. In the same way, if an amend­

ment ,,f the Constitution is law, for the reasons explained by me,

such an amendment is also open to challenge under ArL 32, if it

o!Icnds against the Fundamental Rights by abridging or taking

-\hem away. Of course, it is always qpen to better Fundamental

Rights. A law

or amendment of the Constitution would offend the Fundamental Rights only when it attempts to abridge or take

them away.

The impllrtancc of Fundamental Ri;;ht> in the world.of today

cannot

be lost

si2ht of. On December J 0, I 948, the General

A>Scmbly ·of the "unit.:d Nations adopted the Universal Declara­

tion of Human Rights without a dissent. This draft was made

after the Third Committee of the United Nations had devoted 85

meetings to it. The Declaration represents the· civil. political

and religious liberties for which men have struggled through the

centuries and those new social and economic ri!!hts of the Indivi-

dual which the Nations arc increasingly recognising

in their Cons-

titutionS. Some of these were proclaimed during the French

Revolution

. and arc included in the declarations of Nations

taking pride in the dirmity and liberty of the Individual. They

arc epitomi1cd in thu Prcambk and more fully expressed in Part~

III and IV of our Constitution. These Declarations wherever

found are intended to give a key to social pro!(rcss by envisagin!!

rights to work. to education and io social insurance: ·

The Nations of the world arc now in the second sial!e, where

Covenants are being signed on the part of the States tO respect

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such rights. United Nations Human Rights Commission has •

worked to produce two drafts--0nc dealing with civil and political

right' and the other with economic. social and cultural rights. G

The third stage is still in its infancy in which it is hoped to provide

for the enforcement of these ril!hts on an international basis. The

Rc~ional Charter of the Human Rights under which there is

established already a European Commission of Human Rights to

invcstig11te and report on violations of Human Rights. is a siimifi-

Cant. Step in that direction. After 1955 the European Commis-H

Sion Ila~ become competent to receive complaints from individual'

although the enforceability of· ~uman Rights on an internation~l f

b~.sfa i~ ,:;till far from being achieved. Tf one compares the lTlll-

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