Citation: 1967 AIR 1643
Case Type: Writ Petition(Civil)
Case No: 153 of 1966
Petitioner: I.C. Golakhnath & Ors
Respondents: State of Punjab & Anrs
Decided On: 27-02-1967
Statues Referred: Constitution of India
Case Referred:
- The Superintendent and Legal Remembrancer State of West Bengal v., The Corporation of Calcutta.
- Sankari Prasad Case
- Sajjan Singh Case
Bench: R. K. Subba (CJ), Wanchoo K.N, Hidayatullah. M, Shah J.C, Sikri S.M, Bachawat R.S, Ramaswami V, Shelat. J.M, Bhargava Vashishth, Mitter. G.K, Vaidyalingam C.A
Facts:
Henry and William Golakhnath possessed over 500 acres of farmland in Jalandhar, Punjab. After the coming into force of the Punjab security and Land Tenures Act, the government held that the brothers could have only 30 acres each where a few acres would go to the tenants and rest to be treated as surplus.
This order of the Government was challenged by the family of Golakhnath which was later referred to the Supreme Court in 1965.
The Punjab security and Land Tenures Act was challenged on the ground that it violated the constitutional rights U/A 19(f) ad (g) and also Art. 14. The petitioner(Golakhnath) demanded that the 17th amendment whereby the Punjab Act was placed in the ninth schedule- declare ultra vires.
Issue:
Whether Constitutional Amendment is a law under Article 13(2)?
Whether Fundamental rights can be amended?
Obiter Dicta:
Hidayatullah. M: “The State is no doubt supreme but in the supremacy of its powers it may create impediments on its own sovereignty. There is nothing to prevent the State from placing certain matters outside the amending procedure. When this happens the ordinary procedure of amendment ceases to apply. Amendment can then only be by a freshly constituted body…… The protection of the fundamental rights is necessary so that we may not walk in fear of democracy itself”. “I would require stronger reasons than those given in Sankari Prasad’s case(1) to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common with the other parts of the Constitution and without the concurrence of the States.”
Wanchoo K.N(dissenting): “The words ’fundamental’ used in regard to rights in Part III and the word guaranteed in Art. 32 do not mean that the said rights cannot be amended. The constitution is never at rest; it changes with the progress of time. The scale of values in Parts III and IV is not immortal and these Parts being parts of the Constitution are not immune from amendment under Art. 368”.
Ratio decedendi:
The Constitution guarantees to every citizen, the fundamental rights, but if they are in anyway effected any citizen can move to the court. But it is worthless if the right to move to the Court is taken away. “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”.
Relying on Marginal note of Art. 368 the majority held that the said article does not lay dawn the power to amend the constitution but only provides for the procedure to amend it.
The power to amend the Constitution was conferred U/A 248 which provides for residuary power of the Parliament. And since Art. 248 is law, therefore the Amendment of the Constitution is “law” within the meaning of Art. 13(2) of the Constitution.
The majority held that the definition U/A 13(3) is not exhaustive but inclusive in nature.
The majority was under the impression that if Sajjan Singh case remained the rule of law then a time would come when all the Fundamental Rights would be amended converting democratic society into a totalitarian society. Hence to check this colourable exercise of the power the majority over-ruled the decision in the Sajjan Singh case and held that the Parliament cannot amend Fundamental Rights.
But the minority opined that if the majority’s opinion become rule of law then would associate the Constitution with rigidity. It was held by them that if Parliament is not provided with amending power then the Constitution would become static in nature and would leave a dormant life.
Judgment:
The Apex Court’s bench comprising of : R, K. Subba (CJ), Wanchoo K.N, Hidayatullah. M, Shah J.C, Sikri S.M, Bachawat R.S, Ramaswami V, Shelat. J.M, Bhargava Vashishth, Mitter. G.K, Vaidyalingam C.A., held the following:
“The result is that the Constitution (Seventeenth Amendment) Act, 1964, inasmuch as it takes away or abridges the fundamental rights is void under Art. 13(2) of the Constitution”. The majority found it unnecessary to express their view on whether the amendment of the fundamental rights is covered by the proviso to Art. 368.
The doctrine of prospective over-ruling, can be invoked only in matters arising under our Constitution; it an be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare an binding on all the courts in India; 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 justice of the cause or matter before it.
Hence to avoid flooding Supreme Court from litigation with respect to retrospective operation the doctrine of Prospective overruling was deployed.
By a very thin margin the majority opinion of the Supreme Court left the Parliament with no power to curtail the Fundamental Rights as enshrined in Part III of the Constitution. Hence protecting the Constitution from autocratic actions of the Parliament.
The minority however held that the Parliament had the authority to amend the Constitution in such a way that the Fundamental Rights may also be amended which is essential to keep Constitution in pace with socio-economic changes. Hence they accorded Parliament with autonomy to amend every part of the Constitution.
Conclusion:
Just as God comes to rescue its loved ones similarly the Supreme Court came to rescue the Indian democracy from the draconian action of the Parliament. In order to save the soul of the Constitution from the autocracy of the Parliament the Supreme Court overruled its earlier judgement.
It again as always, not only accorded the Fundamental Rights with primordial character but also protected it from arbitrariness of Parliament. But however the decision seemed to be placing the Constitution with rigid character than a dynamic character.
Kaushal Agarwal.