Judgments

I. C. GOLAK NATH VS STATE OF PUNJAB : CASE SUMMARY

The Supreme Court in I. C. Golak Nath Vs State of Punjab (1967) 2 SCR 762  held that Parliament has no power to amend Part III of the Constitution so as to take away or abridge the Fundamental Rights. This judgment overruled Sri Sankari Prasad Deo Vs Union of India (1959) SCR 89  and Sajjan Singh Vs State of Rajasthan  (1965) SCR (1) 933  but itself was subsequently overruled in Kesavanand Bharati Vs State of Kerala  AIR 1973 SC 1461.

FACTS OF THE CASE

Several Acts were included in Ninth Schedule vide Seventeenth Amendment of the Constitution  including Mysore Land Reforms Act, 1961 and the Punjab Security of Land Tenures Act, 1953. Three Writ Petitions were filed before the Supreme Court challenging the validity of Constitution (Seventeenth Amendment ) Act, 1964.

FINDINGS OF THE SUPREME COURT

The Supreme Court noted that in the question of amendability of Fundamental Rights was considered by it in Sankari Prasad Deo and Sajjan Singh. In Sankari Prasad decision was based on an assumption that the expression “law” in Article 13 (2) does not include constitutional law. In Sajjan Singh the ratio of Sankari Prasad was followed and it was observed that the expression amendment of the constitution plainly and unambiguously means amendment of all the provisions of the Constitution including Fundamental Rights.

The Supreme Court observed that all laws in force in the territory of India immediately before the commencement of the Constitution in so far 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 inconsistency to be void. Thus, Fundamental Rights are given a transcendental position under the Constitution and are kept beyond the reach of the Parliament. At the same time Part III and Part IV constituted an integrated scheme forming a self-contained code. The scheme is made so elastic that all the Directive Principles of State Policy can reasonably be enforced without taking away or abridging the fundamental rights.

While recognizing the immutability of Fundamental Rights, subject to social control, the Constitution itself provides for the suspension or the modification of Fundamental Rights under specific circumstances, for instance, Article 33 empowers Parliament to modify the rights conferred by Part III in their application to members of Armed Forces.  Article 34 enables it to impose restrictions on the rights conferred by the said parts while martial law is in force in an area. Article 35 confers the power on it to make laws with respect of matters which under clause (3) of Article 16, Clause (3) of Article 32, 33 and 34 may be provided for by law. Article 32 makes the right to move the Supreme Court by appropriate proceedings for the enforcements of the rights conferred by the said Parts a guaranteed right. Even during grave emergencies Article 358 only suspends the provisions of Article 19 and Article 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 Article 19 is suspended temporarily and all other rights are untouched except those specifically suspended by the President.

The Supreme Court observed that the Constitution declares certain rights as fundamental 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 and Sajjan Singh laid down the correct law, it enables the same Parliament to abrogate them with one stroke provided the party in power singly or in combination with other parties commands the necessary majority. 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 unanimously 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 compel us to do so.

The Supreme Court observed that there is no distinction in the Constitution of India  between ordinary law and law in exercise of constituent power.

The Supreme Court observed that an amendment of the Constitution is made only by legislative process with ordinary majority or with special majority, as the case may be. Therefore, amendments either under Article 368 of under other Articles are made only by Parliament by following the legislative process adopted by it in making other law. In the premises,  an amendment of the Constitution can be nothing but “law”.

The Supreme Court rejected the argument  that Parliament has any implied power  to amend the Fundamental Rights and held that there is nothing in the nature of the amending power which enables Parliament to override all the express or implied limitations imposed on that power. Indian Constitution had adopted a novel method in the sense that Parliament makes the amendment by legislative process subject to certain restrictions and the amendment so made being subject to Article 13 (2).

The Supreme Court concluded that Parliament has no power to amend Part III of the Constitution so as to take away or abridge the Fundamental Rights. The Supreme Court also applied principles of prospective overruling.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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