CASE BRIEF
Appellants: Sri Shankari Prasad Singh Deo
Respondents: Union of India and State of Bihar
Decided On: October 5, 1951
Judges/Coram
Kania, Hiralal J. (Cj), Sastri, M. Patanjali, Mukherjea, B.K., Das, Sudhi Ranjan, Aiyar, N. Chandrasekhar
Equivalent Citation
AIR 1951 SC 458, 1951 (88) CLJ 281, 1951 64 LW 1005, (1951) IIMLJ 683 (SC), [1952] 1 SCR 89
Statues Referred
- Constitutional (First Amendment) Act, 1951
- Constitution of India, 1950: Article 31A and 31B, Article 13(2), 368, 379, 392
- Constitution (Removal of Difficulties) Order no. 2 of 1950
Facts
- The incumbent political party had implemented agrarian reforms in Madhya Pradesh, Uttar Pradesh, and Bihar by sanctioning a legislation – The Zamindari Abolition Acts.
- However, quite a few Zamindars, feeling aggrieved, filed a suit challenging the above-mentioned legislations on the grounds that it encroached upon Fundamental Rights.
- The Hon’ble High Court of Patna held that the legislations enforced in Bihar were unconstitutional whereas the Hon’ble High Court of Allahbad and Hon’ble High Court of Bombay maintained the constitutionality of the acts.
- The appeals from these judgements were made and the Union Government, with the purpose of putting an end to such litigations, floored a bill of amendment.
- The abovementioned Bill, after obtaining majority was titled the Constitution (First) Amendment Act, 1951. Consequently, the Zamindars filed petitions under Article 32 of the Indian Constitution – contending that the Amendment itself was unconstitutional.
Issue
1. Whether Parliament’s amending power under Article 368 also comprises the power to amend the fundamental rights?
2. Whether an amendment of the Indian Constitution falls under the ambit of ‘Law’ as defined under Article 13(2)?
3. Whether amendments curtailing the fundamental rights could be challenged under Article 13?
Contentions by Parties
Appellant’s Arguments
- The provisional Parliament isn’t competent to exercise the power conferred under art. 379 because the authority to amend the Constitution provided for under art. 368 was bestowed not on the provisional Parliament but on the two Houses of Parliament.
- The power deliberated by art. 368 necessitates active co-operation between the Houses of Parliament, and therefore can be exercised solely by the Parliament which has been duly constituted under Chapter 2 of the Indian Constitution.
- Art. 368 acts as a complete code in itself, i.e. it doesn’t provide for any amendment once has been introduced in either of the Houses. In the present case, the bill has been amended several times during its passage through the House. Consequently, the Amendment has not been enacted in consonance with the procedure laid down under art. 368.
- The Amendment falls within the prohibition mentioned under art. 13 (2) as it purports to curtail/abridge fundamental rights that are enshrined under Part III of the Constitution.
- Article 31A and Article 31B necessitate ratification under clause (b) of the proviso to article 368 purports to make changes in arts. 132, 136 and art. 226 however the have not been ratified – consequently they are unconstitutional. Moreover, the aforementioned Articles are ultra vires because they pertain to matters that fall under List II (State List).
Respondent’s Arguments
- It is not apt to title art. 368 as a “complete code” as there exists glaring gaps in the procedure laid therein, for example how a bill is to be passed by each House of the Parliament and how the President’s assent is to be obtained.
- The “legislative procedure” laid down under Article 107, which unambiguously provides for a bill that has been passed with amendments, is not applicable to a bill that seeks to amend the constitution under art. 368.
- The petitioner’s argument that the power entrusted to a Parliament consisting two Houses could not be exercised under art. 379 by the provisional Parliament neglects that the drafters were well-aware of the fact that a Parliament, envisioned under Chapter II, could not be instituted till after the first elections. Therefore, it necessitates that the work is assigned to the provisional Parliament.
- For that reason, it has been provided in art. 379 that the Constituent Assembly would function as the provisional Parliament throughout the interim period and wield all the powers and execute all the duties conferred by the constitution on Parliament. Therefore, art. 379 is to be interpreted in a broader perspective and not in isolation to art. 368.
- The terms of Article 36A unambiguously empowers the Indian Parliament to amend the constitution, sans any exemption. Had the framers intended to exclude the fundamental rights from its ambit, the same would have been done by including a proviso to that effect.
- Accordingly, in the background of art. 13 “law” must interpreted as rules and/or regulations promulgated in via ordinary legislative power and excludes constitutional amendments.
- Furthermore, it is beyond the power of Parliament to enact the new articles as they were associated to land which is item 18 in List II of the Seventh Schedule and for that reason the State legislatures alone had the power to legislate. However, as the new articles were fundamentally amendments to the Constitution the Parliament did possess the authority to enact them.
Judgment
In the present matter the Apex Court held the following:
- It was held that the authority of the Parliament to amend the Constitution was unfettered – this included in its scope the power to amend the Fundamental Rights by virtue of Article 368 and the same is not in violation of the Constitution provisions.
- As the land reforms did not restrict the powers of the High Court(s) under Art. 226 to issue writs for the administration of any of the Fundamental Rights conferred by Part III or of the Apex Court’s under Art. 132 and Art. 136 to hear appeals from orders issuing or refusing such writs, the Hon’ble Court upheld the validity of. Article 31A and Article 31B were held to be void on the ground of being ultra vires the Constitution; though the same were in relation to the subject of ‘Land’ which came under the List II, the Hon’ble Court declared that the power to amend the Constitution rests exclusively with the Parliament.
Rule of Law
The provision of the law which was under scrutiny by the Hon’ble Supreme Court of India was the court’s application the principle of “Harmonious Construction” so as to resolve the passive struggle between Article 368 and Article 13.
The judgement purports that the provisions of Indian Constitution are interpreted in a mode wherein they do not conflict with each other and there exists harmony between them.
Conclusion
In Conclusion it could be said that in this case the Supreme Court through its judgement has laid down a landmark judgement however, in the present authors’ opinion, the Hon’ble Court has erred in allowing the Parliament to traverse the Fundamental Rights enshrined under Part III of the Indian Constitution. The current ideology of the ‘Basic Structure Doctrine’ which acts as a Constitutional safeguard is a more apt judicial stance on the topic.
Nonetheless, the end goal achieved through this decision, i.e. ending the Zamindari system and improving the lives of millions of laborers cannot be overlooked.