Judgments

SANKARI PRASAD DEO VS UNION OF INDIA : FUNDAMENTAL RIGHTS NOT IMMUNE FROM AMENDMENT

The issue of  amendability of the Fundamental Rights was raised for the first time in Sankari Prasad Deo Vs. Union of India  (1951 AIR  458) wherein the Supreme Court held that Fundamental Rights can be amended. 

After Independence the Union Government and State Governments initiated various agrarian reforms.  Many States passed Zamindari Abolition Acts. These acts were challenged  in various states before respective High Courts  on the ground that they violated Right to Property under Article 31 of the Constitution. The High Court of Bihar held Zamindari Abolition Act unconstitutional while Highs Courts of Uttar Pradesh and Madhya Pradesh found them valid.

Parliament responded by passing the 1st Amendment of the Constitution. Parliament introduced Article 31 A, 31B and Ninth Schedule. Article 31A provided that laws providing for acquisition of estates cannot be challenged on the ground of inconsistency with the Fundamental Rights. Article 31 B provided that Acts and Regulations specified in Ninth Schedule cannot invalidated on the ground of inconsistency with Fundamental Rights. Ninth Schedule was unique innovation of the Parliament granting immunity to acts which were specified in it.

Whether Provisional Parliament Can Amend Constitution

One of the argument raised before the Supreme Court was that  the power of amending the Constitution provided for under Article 368 was conferred not on Parliament but on the two Houses of Parliament as a designated body and, therefore, the provisional Parliament was not competent to exercise that power of amendment.  It is pertinent to mention that at that time constituent assembly was functioning as provisional parliament. Parliament has yet not been constituted on the basis of  fresh elections. The Supreme Court held that the framers were well’ aware that such a Parliament could not be constituted till after the first elections were held under the Constitution. It thus became necessary to make provision for the carrying on, in the meantime, of the work entrusted to Parliament under the Constitution. Accordingly, it was provided in article 379 that the Constituent Assembly should function as the provisional Parliament during the transitional period and exercise all the powers and perform all the duties conferred by the Constitution on Parliament. Article 379 should be viewed and interpreted in the wider perspective of this scheme and not in its isolated relation to article 368 alone. The petitioners  argument that the reference in article 368 to “two Houses” makes that provision inapplicable to the provisional Parliament would equally apply to all the provisions of the Constitution in regard to Parliamentary action and, if accepted, would rob article 379 of its very purpose and meaning.

Whether Fundamental Rights Can Be Amended

Insertion of Article 31 A and Article 31 B was also  challenged on the ground that it purports to take away or abridge fundamental rights which falls within the prohibition of Article 13(2). Article 13 (2)  provides that  State shall not make any law which takes away or 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. It was argued before the Court that “State” Includes Parliament and “law” includes “amendments” under Article 368. It was submitted before the Court that it is not uncommon to find in written constitutions a declaration that certain fundamental rights conferred on the people should be “eternal and inviolate” as for instance article 11 of the Japanese Constitution. Article 5 of the American Federal Constitution provides that no amendment shall be made depriving any State without its consent “of its equal suffrage in the Senate.

The Court held that there are there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. The Court held that in the context of article 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 exercise of constituent power, with the result that article 1:3(2) does not affect amendments made under Article 368.

Thus, the Supreme Court invoked the principle of sovereign constituent  power of Parliament, although no such explicit provision in the Constitution exists, and held that Article 13 (2) has no application on the amendments under Article 368.

Non- Ratification Of Amendment By States

Article 368 (2)  provides for ratification by majority of State Legislatures if amendment seeks to make changes in some specified provisions. One of the grounds raised before the Supreme  Court was that the amendment required ratification from states as insertion of 31 A and 31 B affected power of the High Court under 226 to entertain writs  and power the Supreme Court under Article 131 and 136 to entertain appeals from such writs. The Supreme court  held that It is not correct to say that the powers of the High Court under article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected.  They remain just the same as they were before: only a certain class of case has been excluded from the purview of Part II and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.

Conclusion

The most important finding of the Supreme Court in this judgement was that “laws” as defined under Article 13 (2) do not apply on amendments under Article 368. Implication of this was that all the fundamental rights could have been amended by Parliament under Article 368. This judgment was overruled in I. C. Golaknath Vs. State of Punjab  (1967 AIR 1643)  and final ended with “basic structure”  doctrine in Keshavanand Bharati Vs. State of Kerala (1973) 4 SCC 225.

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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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