Shankari Prasad case

Also called: Shankari Prasad v. Union of India (1951) · Topic: Amendment of the Constitution and the Basic Structure · NCERT: Beyond NCERT

Meaning

The Shankari Prasad case (Shankari Prasad v. Union of India, 1951) is the Supreme Court judgment that upheld the 1st Constitutional Amendment. It held that an amendment made under Art. 368 is not "law" under Art. 13(2), so Parliament can amend fundamental rights, including the right to property.

It matters because it was the first round of the long fight between Parliament and the courts over who controls fundamental rights. That fight ran through Sajjan Singh (1965) and Golaknath (1967) and ended with the basic structure doctrine in Kesavananda Bharati (1973).

Explanation

The question before the Court

• Art. 13(2) says the State shall not make any "law" that takes away or abridges (cuts down) the fundamental rights in Part III. Any such law is void.
• Art. 368 is the article on amending the Constitution. In 1950 its heading was "Procedure for the Amendment of the Constitution" [3].
• The question: is a constitutional amendment a "law" under Art. 13(2)?
• If no, Parliament can amend fundamental rights.

• If yes, fundamental rights are beyond Parliament's reach.

• The challengers: zamindars (large landholders) whose estates were being taken over by land reform laws.

• They argued that the 1st Amendment took away their property rights.
• So, they said, it was a "law" made void by Art. 13(2).

The holding: two kinds of power

• The Supreme Court upheld the 1st Amendment.
• Legislative power: Parliament's normal power to make ordinary laws.

• The Court said "law" in Art. 13(2) means only ordinary law made under this power.

• Constituent power: the power to make or change the Constitution itself.

• An amendment under Art. 368 comes from this power.

• So it is not "law" under Art. 13(2), and Art. 13(2) cannot make it void.

• Result: Parliament can amend any fundamental right, including the right to property.

The amendment procedure the Court accepted (Art. 368 as in 1950)

• Step 1: an amendment bill can start in either House of Parliament.
• Step 2: each House must pass it by a special majority. This means a majority of the total membership of the House, and also two-thirds of the members present and voting [3].
• Step 3: some subjects need more. Changes to the election of the President, Union and state powers, or the federal structure also need ratification by at least half of the states [3].
• Step 4: the bill goes to the President for assent.
• Under Shankari Prasad, an amendment that passed these steps was valid even if it cut down a fundamental right.

Limits of the ruling

• It did not say whether the Constitution has any core that cannot be amended. That question was raised only in Sajjan Singh (1965).
• It was later reversed by Golaknath (1967), which held that an amendment is "law" under Art. 13.
• Parliament brought its view back through the 24th Amendment (1971), which added Art. 13(4) [5].

In the Constitution and practice

• What was challenged: the 1st Constitutional Amendment Act, 1951
• It was passed by the Provisional Parliament. This was the Constituent Assembly sitting as Parliament until the first Lok Sabha was elected in 1952.

• It came after court rulings that blocked reform. For example, the Patna High Court in Kameshwar Singh (1951) struck down Bihar's zamindari abolition law.

• What the 1st Amendment added, and what Shankari Prasad saved:

• Art. 31A: laws that let the State acquire "estates" (landholdings) cannot be struck down under Art. 13, even if they clash with fundamental rights [2].
• Art. 31B and the Ninth Schedule: an Act listed in the Ninth Schedule cannot be challenged for breaking fundamental rights. This applies "notwithstanding any judgment, decree or order of any court or Tribunal to the contrary" [1].
• The Schedule began with 13 Acts, all land reform laws. Item 1 was the Bihar Land Reforms Act, 1950 [4].

• Art. 15(4) (special provisions for backward classes, SCs and STs) and the new Art. 19(2) ("reasonable" restrictions, plus public order, friendly relations with foreign states and incitement to an offence).

• Purpose: to end slow and costly court cases and to put agrarian reform laws (laws on land ownership and tenancy) beyond court challenge [2][4].

• What happened next:
• Sajjan Singh (1965): the majority followed Shankari Prasad and upheld the 17th Amendment (1964). Justice Hidayatullah and Justice Mudholkar raised doubts. Mudholkar J. asked whether changing the Constitution's "basic features" would be a rewriting of it rather than an amendment.
• Golaknath (27 February 1967): an 11-judge bench under CJI K. Subba Rao overruled Shankari Prasad by 6:5. It held that an amendment is "law", so Parliament cannot take away fundamental rights. Through prospective overruling (a new ruling that applies only to the future), it left the 1st, 4th and 17th Amendments valid.
• 24th Amendment (1971): it added Art. 13(4), which says Art. 13 does not apply to amendments made under Art. 368. It also renamed Art. 368 to describe a "power" to amend [3][5]. This put the Shankari Prasad view into the text of the Constitution.
• Kesavananda Bharati (1973): Parliament can amend any part of the Constitution, including fundamental rights, but cannot destroy its basic structure (its core features).

Don't confuse with

• Golaknath (1967): Shankari Prasad said an amendment is not "law" under Art. 13, so fundamental rights can be amended. Golaknath said the opposite: an amendment is "law", so they cannot be taken away.
• Sajjan Singh (1965): it also upheld Parliament's power and followed Shankari Prasad. It is remembered for Mudholkar J.'s "basic features" doubt. Shankari Prasad raised no such doubt.
• Kesavananda Bharati (1973): Shankari Prasad gave Parliament an unlimited power to amend fundamental rights. Kesavananda allowed amendment but added a limit: the basic structure cannot be destroyed.
• Art. 13(4) (24th Amendment, 1971): this is the written rule that amendments are outside Art. 13 [5]. Shankari Prasad reached the same result 20 years earlier through a court judgment, before the text said so.

Prelims Hooks

• Shankari Prasad (1951): "law" in Art. 13(2) means ordinary law, not a constitutional amendment. So fundamental rights can be amended.
• The case upheld the 1st Amendment, 1951, which added Art. 15(4), 31A, 31B and the Ninth Schedule. The amendment was passed by the Provisional Parliament.
• Legislative power gives ordinary law and is covered by Art. 13(2). Constituent power gives amendments under Art. 368 and is not covered. This is the core distinction of the case.
• Order of the cases: Shankari Prasad (1951) → Sajjan Singh (1965, followed it) → Golaknath (1967, overruled it, 6:5) → 24th Amendment (1971) added Art. 13(4) to restore its view [5].
• Trap: Shankari Prasad did not create the basic structure doctrine. The idea of "basic features" first came from Mudholkar J. in Sajjan Singh (1965).
• Ninth Schedule link: the 1st Amendment it upheld began the Schedule with 13 Acts. Item 1 was the Bihar Land Reforms Act, 1950 [4].

Mains Points

• Parliamentary sovereignty vs. rights:
• The Shankari Prasad view: an elected Parliament must be able to push social reform, such as zamindari abolition, past courts that protect property.
• The risk: an unlimited power to amend could empty Part III, which Golaknath feared.

• Neither extreme lasted. Kesavananda Bharati (1973) found the middle path: Parliament may amend any part, but cannot destroy the basic structure.

• Opening the door to shutting out the courts:

• By upholding Arts. 31A, 31B and the Ninth Schedule, the case allowed Parliament to place laws beyond judicial review (the courts' power to strike down unconstitutional laws).
• The Schedule grew from 13 to about 284 entries. It came to include laws beyond land reform, such as Tamil Nadu's 69% reservation law (76th Amendment, 1994).

• This makes it a useful example for answers on how Parliament has avoided checks by the courts.

• Political history (GS-I):

• The case belongs to the Nehru-era push for land reform through the Constitution.
• The conflict it began grew through Golaknath, R.C. Cooper and the privy purses case (1970).
• It led to the 1971 mandate and the 24th–26th Amendments.

Related concepts

• 1st Constitutional Amendment Act 1951
• Ninth Schedule
• Sajjan Singh case
• Golaknath case
• Doctrine of prospective overruling
• R.C. Cooper case

Read more

• Parliament vs the judiciary I: from Shankari Prasad to Golaknath