I.C. Golaknath v. State of Punjab: Fundamental Rights beyond the amending power

By the mid-1960s the Supreme Court had twice told Parliament that the Fundamental Rights were not safe from constitutional amendment, and twice the answer had been allowed to stand. Golaknath was the case in which that answer was reopened and reversed. The Court that heard it was the largest assembled in the Republic to that date — eleven judges — and the judgment it delivered on 27 February 1967, reported at AIR 1967 SC 1643, marked the opening of the long contest between Parliament and the Court over the limits of the amending power.

The facts in brief

The dispute arrived, as so many of the great constitutional cases did, through land. The Golak Nath family challenged the Punjab Security of Land Tenures Act, a land-ceiling statute that had been placed in the Ninth Schedule by the Seventeenth Amendment and so clothed with the protection of Article 31B. That protection was the obstacle: a statute lodged in the Ninth Schedule was immunised from challenge on the ground that it abridged a Fundamental Right.

To reach the land law, the petitioners had to reach the amendment that shielded it — and behind that, the whole apparatus by which Parliament had been adding statutes to the Ninth Schedule since 1951. The challenge therefore widened, almost necessarily, into an attack on the amending power itself. Could Parliament, by exercising Article 368, place beyond constitutional challenge a law that would otherwise fall foul of Part III?

That question was not new. It had been decided — the other way — in Shankari Prasad (1951), where the First Amendment was upheld and the amending power held unconstrained by the Fundamental Rights, and again in Sajjan Singh (1965), which reaffirmed that position when the Seventeenth Amendment was challenged. Golaknath set both decisions up for reconsideration.

The constitutional question

The question the Court set itself was whether the Fundamental Rights guaranteed by Part III could be taken away or abridged by an amendment made under Article 368.

Its resolution turned on the meaning of a single word in Article 13(2). That provision commands that the State "shall not make any law which takes away or abridges" the rights conferred by Part III, and that any law made in contravention is, to the extent of the contravention, void. Everything depended on whether a constitutional amendment counted as "law" for the purposes of that prohibition.

If an amendment under Article 368 was ordinary "law" in the Article 13 sense, then Article 13(2) applied to it, and an amendment abridging a Fundamental Right was void exactly as a statute would be. If an amendment was something other than "law" — an exercise of a distinct constituent power standing outside the reach of Article 13 — then Part III offered no defence against it, and Shankari Prasad and Sajjan Singh were rightly decided. The case reduced, in the end, to that classification.

What the Court held

The eleven judges divided six to five. The majority held that Parliament cannot abridge or take away the Fundamental Rights in Part III by exercising the amending power under Article 368. The reasoning rested on the classification the question demanded: a constitutional amendment is "law" within the meaning of Article 13(2), so an amendment that abridges Part III falls within the prohibition that provision lays down and is void to that extent. The amending power, on this view, carried no special immunity that lifted it above the guarantees of Part III.

Chief Justice Subba Rao wrote for the majority, with Shah, Sikri, Shelat, Vaidialingam and Bhargava, JJ. concurring. Hidayatullah, J. concurred in the result by a separate opinion, reaching the same conclusion along his own path. The remaining four — Wanchoo, Bachawat, Ramaswami and Mitter, JJ. — dissented, holding to the position that the amending power lay outside the reach of Article 13 and that the earlier decisions had been correct.

The 6:5 margin is the measure of how contested the conclusion was. A single vote separated the view that the Fundamental Rights were beyond Parliament's amending reach from the view that they were not, and the Court that produced that majority would be the high-water mark of the proposition: it would not survive the decade.

The problem of the past — and prospective overruling

A decision that amendments abridging Fundamental Rights were void carried an awkward consequence. The First, Fourth and Seventeenth Amendments — and the many statutes they had folded into the Ninth Schedule — had all proceeded on the contrary understanding, the understanding that Shankari Prasad and Sajjan Singh had blessed. To declare the amending power incapable of touching Part III, with retrospective force, would put each of those amendments and the laws they protected at risk and throw years of settled arrangements into doubt.

To meet that difficulty the Chief Justice introduced into Indian jurisprudence a technique the Court had not used before: the doctrine of prospective overruling. The ruling would operate only for the future. The amendments already made would be left intact — their validity preserved by the law as it had been understood when they were passed — while the new limitation would bar any future amendment that abridged the Fundamental Rights.

It was a deliberate compromise between principle and continuity. The principle the majority believed correct was announced; the disruption that principle would otherwise have caused was contained by confining its operation to amendments yet to come. Prospective overruling allowed the Court to change the law without unmaking the past, and it entered the Indian constitutional vocabulary through this case. It has been deployed since, sparingly, where a correct rule would otherwise reopen transactions settled under the rule it displaces.

Why it matters

Golaknath did not settle the question it answered; it inflamed it. By placing the Fundamental Rights beyond the amending power, the majority set the Court directly against Parliament's claim to amend the Constitution as it saw fit, and the political reaction was not long in coming.

Parliament responded with the Twenty-fourth Amendment, which reasserted in terms its power to amend any provision of the Constitution, including the Fundamental Rights. That assertion, and the amendments that accompanied it, carried the dispute to its culmination in Kesavananda Bharati v. State of Kerala (1973). There a thirteen-judge Bench — larger still, convened precisely because Golaknath required reconsideration — overruled Golaknath on the point that an amendment is "law" under Article 13, restoring Parliament's power to amend Part III. But in the same breath it replaced the limit Golaknath had drawn with a different and more durable one: the basic structure doctrine, under which the amending power, however wide, cannot be used to alter the Constitution's essential features.

So the holding of Golaknath was undone, yet its work was not. The case forced the question of whether the amending power is limited at all, and the answer Indian constitutional law eventually settled on — that it is, though not in the way Golaknath supposed — was reached only because Golaknath had insisted the question be asked. It is read today as the necessary first move in the sequence that produced the basic structure, and as the source of the prospective-overruling technique that outlived the holding it was invented to soften.

Related on Valkya

• Kesavananda Bharati v. State of Kerala — the thirteen-judge Bench that overruled Golaknath on "amendment = law" and replaced its limit with the basic structure doctrine.
• I.R. Coelho v. State of Tamil Nadu — the later authority on whether Ninth Schedule entries are immune from challenge, the very protection Golaknath set out to test.
• Maneka Gandhi v. Union of India — the 1978 judgment that, like Golaknath, reshaped how the Court reads Part III against the powers ranged against it.

Sources

• SCC Online / SCC Times, case coverage of I.C. Golaknath v. State of Punjab — https://www.scconline.com/blog/post/tag/i-c-golaknath-v-state-of-punjab/
• SC Observer, "Justice Koka Subba Rao" — https://www.scobserver.in/judges/justice-koka-subba-rao/
• Bar & Bench, "The Basic Structure Case and India's Court-Packing Episode" — https://www.barandbench.com/columns/the-basic-structure-case-and-indias-court-packing-episode