Golaknath v.

State Of Punjab

(1967 AIR 1643, 1967 SCR (2) 762), or simply the Golaknath case, was a 1967 Indian Supreme Court
case, in which the Court ruled that Parliament could not curtail any of the Fundamental Rights in the
Constitution.

Facts
The family of Henry and William Golak Nath held over 500 acres of farmland in Jalandhar, Punjab.
In the phase of the 1953 Punjab Security and Land Tenures Act, the state government held that the
brothers could keep only thirty acres each, a few acres would go to tenants and the rest was declared
'surplus'
. This was challenged by the Golak Nath family in the courts and the case was referred to the Supreme
Court in 1965.
The family filed a petition under Article 32 challenging the 1953 Punjab Act on the ground that it
denied them their constitutional rights to acquire and hold property and practice any profession
(Articles 19(f) and (g)) and to equality before and equal protection of the law (Article 14).
They also sought to have the Seventeenth Amendment which had placed the Punjab Act in the Ninth
Schedule declared ultra vires'.
The issues involved were whether Amendment is a law under the meaning of Article 13(2), and
whether Fundamental Rights can be amended or not.

Judgment
The judgment reversed the Supreme Court's earlier decision which had upheld Parliament's power to
amend all parts of the Constitution, including Part III related to Fundamental Rights. The judgement
left Parliament with no power to curtail Fundamental Rights.
The Supreme Court, by thin majority of 6:5, held that a constitutional amendment under Article 368 of
the Constitution was an ordinary 'law' within the meaning of Article 13(2) of the Constitution. The
majority did not believe there was any difference between ordinary legislative power of the parliament
and the inherent constituent power of parliament to amend the Constitution. The majority did not agree
with the view that Article 368 of the Constitution contained "power and procedure" to amend, but
instead believed that the text of Article 368 only explained the procedure to amend the constitution, the
power being derived from entry 97 of the List I of the VII Schedule to the Constitution.
Since according to Article 13(3), the parliament could not make any law that abridges the Fundamental
Rights contained in Part III of the Constitution, a constitutional amendment, also being an ordinary law
within the meaning of Article 13, could not be in violation of the fundamental rights chapter contained
in the Constitution of India. Therefore, all constitutional amendments thus far which were in
contravention or which had made an exception to fundamental rights chapter of the Constitution were
said to be void.

The Doctrine of Prospective Overruling

It was in this case that the then Chief Justice Koka Subba Rao had first invoked the doctrine of
prospective overruling. He had taken import from American law where jurists like George F. Canfield,
Robert Hill Freeman, John Henry Wigmore and Benjamin N. Cardozo had considered this doctrine to
be an effective judicial tool. In the words of Canfield, the said expression means:
"........ a court should recognize a duty to announce a new and better rule for future transactions
whenever 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".
Taking cue from such formulation, Justice Subba Rao used this doctrine to preserve the constitutional
validity of the Constitution (Seventeenth Amendment) Act, legality of which had been challenged. He
drew protective cover offered by the doctrine over the impugned amendments while manifestly holding
that the impugned amendments abridged the scope of fundamental rights. Justifying his stand, he held
that:
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 situation
that may be brought about by the sudden withdrawal at this stage of the amendments from the
Constitution, we think that considerable judicial restraint is called for. We, therefore, declare that our
decisions will not affect the validity of the constitution (Seventeenth Amendment) Act, 1964, or other
amendments made to the Constitution taking away or abridging the fundamental rights. We further
declare that in future Parliament will have no power to amend Part III of the Constitution so as to take
away or abridge the fundamental rights.
Minority
The judges who delivered the minority judgment in the Golaknath case dissented with the view of the
invocation of the doctrine of prospective overruling. They seemed to rest their argument on the
traditional theory, where they said that courts declare law and a declaration being the law of the land
takes effect from the date the law comes into force. They further said that it would be loathsome to
change the above principle and supersede it by the doctrine of prospective overruling. It is submitted
here that the doctrine of prospective overruling in anyway does not supersede the already existing
doctrine but simply tries to enrich the existing and rather complex practice with regard to the effects of
new judicial decisions, by the adoption of an alternative discretionary device to be employed in
appropriate cases. So, the basic characteristics of the above doctrine are the flexibility of content and
fitfulness of occurrence.

Significance
Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court judgement. It amended
the Constitution to provide expressly that Parliament has the power to amend any part of the
Constitution including the provisions relating to Fundamental Rights. This was done by amending
articles 13 and 368 to exclude amendments made under article 368, from article 13's prohibition of any
law abridging or taking away any of the Fundamental Rights.
The Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala held that the
Parliament under the Indian Constitution is not supreme, in that it cannot change the basic structure of
the constitution. It also declared that in certain circumstances, the amendment of fundamental rights
would affect the basic structure and therefore, would be void. Thus, one can see that this case is drawn
on a larger canvas as compared to that of Golaknath. It also overruled Golaknath and thus, all the
previous amendments which were held valid are now open to be reviewed. They can also be sustained
on the ground that they do not affect the basic structure of the constitution or on the fact that they are
reasonable restrictions on the fundamental rights in public interest. Both the cases, if seen closely, bear
the same practical effects. What Golaknath said was that the Parliament cannot amend so as to take
away the fundamental rights enshrined in Part III, whereas in Keshavananda, it was held that it cannot
amend so as to affect the basic structure.
Beginning with its ruling in GOLAKNATH, the Court developed jurisprudence around what was
known as the basic structure doctrine. According to this doctrine, the Court was in charge of
preventing the erosion of those enduring values that constitute the essence of constitutionalism.
Although it backtracked six years later, the Court continued to say publicly that in principle no
institutional body could alter the democratic essence of the Constitution. Similarly, in property law
disputes, the Court did not hesitate to rule on more than one occasion that individuals whose land was
taken by the government were receiving inadequate compensation. As the state increasingly failed to
deliver on its promises and the public grew tired of the countrys lack of prosperity, more people began
turning to the Court as the one legitimate institution with the power to protect their interests.

Issues Involved In This Case:

(1.) Whether Amendment is a law under the meaning of Article 13(2)?

(2.) Whether Fundamental Rights can be amended or not?
Justification Of The Case.
(1.) Whether Amendment is a law under the meaning of Article 13(2)?
Since 1951, questions have been raised about the scope of the constitutional amending process
contained in Article 368. In Shankari Prasad Singh v. Union of India , the argument against the validity
of he 1st Amendment was that Article 13 prohibits enactment of a law infringing or abrogating the
Fundamental Rights that the word Law in Art. 13 would include any law; even a law amending the
Constitution and, therefore, the validity of such a law could be judged and scrutinized with the
reference to the fundamental rights which it could infringe. Here in this case there was a conflict
between Arts. 13 and 368. Adopting the literal meaning of the constitution, the Supreme Court upheld
the validity of the 1st Amendment. The Court rejected the contention and limited the scope of Art. 13
by ruling that the word Law in Art. 13 would not include within its compass a constitution amending
law passed under Art. 368. The Court stated on this point: we are of the opinion that is the context of
Art. 13 laws must be taken to mean rules and regulations made in the exercise of ordinary legislative
power and not amendments to the Constitution made in the exercise of constituent power with the
result that Art. 13(2) do not affect amendments made under Art. 368.
The Court held that the terms of Art. 368 are perfectly general and empower Parliament to amend the
Constitution without any exception. The fundamental rights are not excluded or immunized from the
process of constitutional amendment under Art. 368. These rights could not be invaded by legislative
organs by means of laws and rules made in exercise of legislative powers, but they could certainly be
curtailed, abridged or even nullified by alterations in the Constitution itself in exercise of the
constituent power.
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. Both Article 13 and 368 are widely
phrased and conflict in operation with each other. To avoid the conflict, the principle of harmonious
construction should be applied. Accordingly, one of these Articles ought to be read as being controlled
and qualified by the other. In the context of Article 13, it must be read subject to Art. 368. Therefore,
the word law in Art. 13 must be taken to refer to rules and regulations made in exercise of ordinary
legislative power, and not to constitutional amendments made in the exercise of the constituent power
under Art. 368 with the result that Art. 13(2) do not affect amendments made under Art. 368. The
Court, thus, disagreed with the view that the fundamental rights are inviolable and beyond the reach of
the process of constitutional amendment. The Court, thus, ruled that Art. 13 refer to a legislative law
that is an ordinary law made by a legislature, but not to a constituent law that is a law made to amend
the constitution. The Court thus held that Parliament could by following the procedure laid down in
Art. 368 amend any fundamental right.
Again in Sajjan Singhs case this issue came up. But the Supreme Court in this case ruled by majority
of 3:2 that the pith and substance of the Amendment was only to amend the fundamental right so as
to help the State Legislatures in effectuating the policy of the agrarian reform. The conclusion of the

Supreme Court in Shankari Prasads case as regards the relation between Arts. 13 and 368 was
reiterated by the majority. it felt no hesitation in holding that the power of amending the Constitution
conferred on Parliament under Art. 368 could be exercised over each and every provision of the
Constitution. The Court refused to accept the argument that fundamental rights were eternal, inviolate,
and beyond the reach of Art. 368.

(2.) Whether Fundamental Rights can be amended or not?

No earthly wisdom can foresee every possible situation which may have to be faced in future. Nothing
may remain static in the world. Nature demands change. A political society undergoes changes with the
passage of time. To face new problems and challenges changes and modifications are called for in all
aspects of national life. It is therefore, impossible to make a constitution which can satisfy the needs of
the people for all times to come. Changing circumstances will require modification of constitutional
provisions. A constitution that denies the right to amend it is likely to be destroyed and replaced by the
succeeding generations. It is therefore wise to provide for a mechanism to change the constitution in
the Constitution itself. That is why every modern constitution provides for a machinery or process to
amend its provisions. The framers of the Indian Constitution provided for a process which is neither too
rigid nor too flexible. Article 368 specially deals with amendments but some other Articles in the
Constitution provide for amendments by ordinary legislative process.
Views of Pandit Jawaharlal Nehru supporting the amending provisions:
That while we want this constitution to be as solid and as permanent as a structure we can make it
nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you make
anything rigid and permanent, you stop the Nations growth, the growth of a living, vital organic
people
But in any event, we should not make a Constitution such as some other great countries have, which are
so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when
the world is in turmoil and we are passing through a very swift period of transition, what we may do
today may not be wholly applicable tomorrow.
In Shankari Prasads case soon after the 1st Amendment was made, a controversy arose as to whether
fundamental rights could be amended by procedure prescribed in Article 368. The validity of the 1st
Amendment was considered by the Supreme Court in Shankari Prasad v. Union of India. It was argued
that Article 13 prohibited enacting a law infringing or abrogating the fundamental rights. A law
amending the Constitution must conform to Article 13. So the amendment Act is void as violating
Article 13. But the Supreme Court did not accept the argument. It held that Article 13 is not applicable
to Acts which amend the Constitution. Article 368 permits the Parliament to amend any provision of
the Constitution. In 1965 in Sajjan Singhs case the SC adhered to the judgment given in the Shankari
Prasads case. After referring to the reasoning given in Shankari Prasad's case the learned Chief Justice
observed:
In our opinion, the expression "amendment of the Constitution" plainly and unambiguously means
amendment of all the provisions of the Constitution."
Referring to Art. 13 (2), he restated the 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 amending process
they should have taken the precaution of making a clear provision in that regard. In short, the majority,
speaking through Chief Justice Gajendragadkar, agreed that no case had been made out for reviewing

the earlier decision and practically accepted the reasons given in the earlier decision. Many judges have
stated that Parliament had the power to amend any or all provisions of the Constitution. Also Article
368 contained both the power and procedure for amending the Constitution. However those Judges
were clear that an amendment to the Constitution was not the same as a law as understood by Article
13(2). Justice Ray held that all parts of the Constitution were essential, and no distinction could be
made between its essential and non-essential parts.

INDEX
1.

FACTS OF THE CASE

2.

JUDGEMENT

3.

DOCTRINE OF PROSPECTIVE OVERRULING

4.

SIGNIFICANCE

5.

ISSUE INVOLVED IN THE CASE

6.

AMENDING PROVISIONS