Topics Covered in this article
- Justice H.J. Kania
- Justice M. Patanjali Sastri
- Justice B.K. Mukherjea
- Justice Sudhi Ranjan Das
- Justice N. Chandrasekhara Aiyar
Petitioner- Sri Shankari Prasad Singh Deo
Respondent- Union of India & State of Bihar
“Constitution is not a mere lawyer’s document, it is a vehicle of Life, and its spirit is always the spirit of Age.”B.R. Ambedkar
If we look back to history, we find ourselves very fortunate that our freedom fighters and lawmakers have worked so hard so that their next generations can live freely and proudly. November 26, 1949, was a memorable day for each one of us as on this day India adopted its Constitution. We have completed a long way, that is, almost 72 years with our Constitution and till now we have understood the need and importance of it. Our Constitution consists of many provisions that govern the people of the country and also provides the people to question these laws if they find that any of the rights guaranteed to them are being infringed.
This is a case in which the first amendment of the Constitution was challenged and has provided a contribution in the ‘Doctrine of Basic Structure’. This case has widened the scope of fundamental rights provided by our Constitution to all the citizens, irrespective of their religion, race, caste, or sex. This was the first case that had challenged the first amendment in a few days only.
Facts of the Case
Post-independence, the Parliament decided to enact land reforms in the states of Bihar, Uttar Pradesh, and Madhya Pradesh through legislation. This land reform came to be known as the Zamindari Abolition Act. The zamindars were perturbed with this decision because the enactment of this legislation would redistribute their landholdings among the tenants and deprive them of their landholdings. In order to get hold of their property, the aggrieved parties filed a petition in the High Court of Bihar, Uttar Pradesh, and Madhya Pradesh by challenging the legislation as being unconstitutional and violative of their fundamental rights under Part III of the Indian Constitution. The Patna High Court declared the Bihar Land Reforms Act, 1950 as unconstitutional, while the Allahabad High Court and the Nagpur High Court upheld the validity of the legislation in the respective states. The resented parties filed appeals, in pursuance of these judgements.
Further, in order to get rid of these litigations, the Parliament enacted a remedy in the form of the Constitution (First Amendment) Act, 1951. This Amendment Act validated the Zamindari Abolition Laws and restricted Fundamental Right to Property. It also led to the addition of Articles 31A and 31B to the Constitution.
However, this led to a situation of resentment amongst the zamindars and they filed a petition under Article 32 of the Constitution of India, 1950, challenging the Act on grounds of it being unconstitutional and void.
Issues of the Case
This case revolves around three basic and most important issues which are listed below:
- Whether the amending power of the Parliament under Article 368 of the Indian Constitution is inclusive of the power to amend the fundamental rights guaranteed by Part III of the Constitution?
- Whether ‘law’ under Article 13 (2) includes amendment of the Constitution?
- Whether the amendments taking away or abridging the fundamental rights can be challenged under Article 13 of the Constitution?
Laws involved in the Case
This is a case which involves quite a large number of provisions from the Constitution. These provisions are mentioned below:
- Article 13 (2) of the Constitution of India, 1950
- Article 31A and 31B of the Constitution of India, 1950
- Article 132 of the Constitution of India, 1950
- Article 226 of the Constitution of India, 1950
- Article 368 of the Constitution of India, 1950
Arguments on behalf of the Petitioner
The arguments contended on part of the petitioners, that is, the zamindars were as follows:
- That the amending power of the Constitution under Article 368 of the Constitution was not conferred upon the Parliament but on the two houses of the Parliament, so the Parliament was not competent to exercise the power as a designated body under Article 379 of the Constitution.
- That the powers conferred by the virtue of Article 379 on the Parliament do not depute on the provisional Parliament. The words of the said Article denote that such powers are capable of being exercised only by the provisional Parliament consisting of a single chamber. Moreover, the powers conferred by Article 368 calls for a co-operative action of two Houses of the Parliament.
- That the Order No. 2, that is, the Constitution (Removal of Difficulties) issued by the President on January 26, 1950, by omitting the words ‘either House of’ and ‘in each House’ and substituting ‘Parliament’ with ‘That House’ is beyond their powers conferred by Article 392 of the Constitution, as this article clearly states that it should be taken into account only in the situation of difficulties in the working of the Constitution during the transitional period, whose removal is necessary for the smooth working of the Government. However, no such difficult situation could be experienced on the present date.
- That Article 368 of the Constitution was complete in itself and does not provide for an amendment to be made once the bill has been introduced in the house. Already the bill had undergone many amendments while in the house. Thus, the Amendment Act cannot be said to have been passed following Article 368.
- That the Constitution (First Amendment) Act, 1961 which was violative of their fundamental rights was under the ambit of Article 13 (2).
- That the Articles 31A and 31B, seeking to make changes in Articles 132, 136, and 226 of the Constitution required validation, and since they have not been ratified, they were void and unconstitutional. These Articles are ultra vires as they contradict the matters enlisted in List II which requires the State Legislatures to make laws and not the Parliament.
Arguments on behalf of the Respondent
The arguments raised on part of the respondents, that is, the Union of India, are as follows:
- When the Constitution solicited power upon the Parliament, it specifically mentioned ‘Parliament’ as the inheritor of that power, mentioned in numerous articles, but it deliberately avoided the use of the word ‘Parliament’ in Article 368 of the Constitution.
- That the provisional Parliament is free to exercise all the powers under Article 379 of the Constitution and so can the Parliament under Article 368. So, there is no need to interpret the words ‘All the powers’ in Article 379 by excluding Amendment from their ambit.
- That Article 13 (2) does not affect the amendments made under Article 368 as the word ‘law’ under Article 13 must be interpreted to make rules and regulations made in the exercise of legislative powers and not amendments to the Constitution.
- That the argument presented by the petitioners that the bill should be passed as introduced, without amendments, in order to be amended is unreasonable. It cannot be said that the bill referred to in Article 368 has to follow a procedure different from the one laid down in Article 107 and Article 108 of the Constitution.
- That the Article 31A and 31B are not legislative in nature and do not hamper the scope of the powers of the court under Articles 226 and 32 of the Constitution.
- That the Parliament has exclusive power to legislate in matters of amendment in the Constitution and it falls within the ambit of item 18 in List II of Seventh Schedule.
Judgment of the Case
“So long as you do not achieve social liberty, whatever freedom is provided by the law is of no avail to you.”Dr. B.R. Ambedkar
The judgment was delivered by Hon’ble Justice M. Patanjali Sastri.
The Apex Court unanimously held that if an amendment is considered to be superior to the ordinary legislation, its validity cannot be struck down by Article 13 (2). The Court further added that the power to amend the Constitution under Article 368 is inclusive of the power to amend fundamental rights and the word ‘law’ under Article 13 (2) includes only ordinary law made through legislation and not any constitutional amendment that is made in exercise of constituent power. The Court ruled out that a constitutional amendment cannot be declared invalid even if it abridges or takes away the fundamental rights of the people.
In this case, the Hon’ble Court applied the Doctrine of Harmonious Construction to remove the inconsistency between Article 368 and Article 13. The Court also relied on the principle that the provisions of the Constitution should be interpreted in a manner such that they do not conflict with each other and must maintain harmony among them.
Thus, the Court upheld the validity of the First (Amendment Act), 1951 and adopted the acquisition of property in terms of Article 31A and 31B by adjudging that these provisions do not seek to make any changes in Article 226 or 132 and 136 of the Indian Constitution. Henceforth, the Court finally dismissed this petition with costs.
Analysis of the Judgment
“The only armor of the Supreme Court is the cloak of public trust; its sole ammunition is the collective hopes of our society.”Irving R. Kaufman
It is not a myth but a fact that change is the need of any society. In this judgment, the Apex Court has, however, failed to adopt that change and pronounced a vague judgment. The main motive of a judge is to analyze and secure the status of its people as well as the legislation. Though, in this case, they have narrowed down the scope of Article 13 (2) by dismissing the petition. This ambiguous decision by the Court ruled out in terms of acquisition and did not pay heed to the Constitution and its restrictions. The Court rather assumed most of the things and pronounced that “they found it difficult in the absence of contrary to suppose that the Constitution framers also intended to make fundamental rights immune from the constitutional amendment”. The brooding part of such judgment is that it is carried forward in the form of precedents and this judgment was also carried on by upholding this case in the landmark judgements of Sajjan Singh v State of Rajasthan, Golaknath v State of Punjab until another landmark judgment overruled all these judgements. This landmark overruling judgment was Kesavananda Bharati v State of Kerala. This case has been instrumental in outlining the doctrine of the basic structure of the Indian Constitution. Thus, the ruling in the case of Shankari Prasad was irrational, imprudent, and vague.
Judiciary is the third most important organ of the Indian Government, so it is very important for them to be independent to make decisions without any external influence. In India, the Constitution is made in such a way that there is a solution to every legal problem in it. If a particular bench fails to deliver their rational decisions, then the bench in other cases can cover it up, as it was done in the case of Kesavananda Bharati, which had put a blanket on the case of Shankari Prasad by over ruling it. This evidently represents that the judgements where a question of law has not been determined consciously are not binding on their subordinate courts or as precedents. Thus, the Courts and the Constitution are of paramount importance and are dependent on one another. This interdependence is very significant for the adjudication of disputes. Furthermore, the judiciary is assigned a duty to remove the flaws in the existing laws and keep these laws upgraded with the society. Thus, the Court has an obligation to maintain the balance between the need of certitude and continuity and the expedient of growth and development of law.
 Aditya Dubey, The Doctrine of Basic Structure, https://blog.ipleaders.in/doctrine-basic-structure/.
 The Constitution of India, 1950, Article 368.
 The Constitution of India, 1950, Article 379.
 The Constitution of India, 1950, Article 392.
 The Constitution of India, 1950, Article 107.
 The Constitution of India, 1950, Article 108.
 1965 AIR 845.
 1967 AIR 1643.
 AIR 1973 SC 1461.