Parliament vs the judiciary I: from Shankari Prasad to Golaknath

Detail

The starting point: Art. 368 and Art. 13 in 1950

• Art. 368 is the article on amending the Constitution. In 1950 its heading was "Procedure for the Amendment of the Constitution" [4].
• The 1950 procedure for an amendment bill:
• Step 1: the 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 [4].
• 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 [4].

• Step 4: the bill goes to the President for assent.

• 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.

• The core question of 1951–1973: 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 1st Constitutional Amendment Act, 1951

• Who passed it: the Provisional Parliament. This was the Constituent Assembly sitting as Parliament until the first Lok Sabha was elected in 1952.
• What caused it: court rulings in three areas.

Area	Case	What the court did
Land reform	Kameshwar Singh (Patna High Court, 1951)	Struck down Bihar's zamindari abolition law
Free speech	Romesh Thappar and Brij Bhushan (1950)	Struck down bans on journals. "Public order" was not then a ground for restricting speech under Art. 19(2)
Caste quotas	Champakam Dorairajan (1951)	Struck down Madras's communal quotas in college admissions

• What it changed:
• Art. 15(4) was added. The State may make special provisions for socially and educationally backward classes, SCs and STs.
• Art. 19(2) was rewritten:
  • Restrictions on free speech must now be "reasonable", and courts can check whether they are.
  • Three new grounds were added: public order, friendly relations with foreign states and incitement to an offence.
• Art. 31A was inserted. It saves laws that let the State acquire "estates" (landholdings) or take over property management. Such laws cannot be struck down under Art. 13, even if they clash with fundamental rights [3].

• Art. 31B and the Ninth Schedule were inserted (details below).

• Why: Arts. 31A, 31B and the Ninth Schedule were added to stop slow and costly court cases and to put agrarian reform laws (laws on land ownership and tenancy) beyond court challenge [3][5].

The Ninth Schedule and Art. 31B

• Ninth Schedule: a list of Acts at the end of the Constitution. Under Art. 31B, a law placed in it cannot be challenged in court for breaking fundamental rights.
• What Art. 31B says: no Act in the Ninth Schedule "shall be deemed to be void, or ever to have become void" for clashing with Part III. This applies "notwithstanding any judgment, decree or order of any court or Tribunal to the contrary" [2].
• "Ever to have become void" makes the protection retrospective. A law already struck down by a court comes back to life once it is listed.

• Art. 31B works "without prejudice to" Art. 31A, so it is wider. A listed law does not have to be about estates [2].

• Growth:

• The Schedule began in 1951 with 13 Acts, all of them land reform laws. Item 1 was the Bihar Land Reforms Act, 1950 [5].

• It now has about 284 entries (verify current).

• Beyond land reform: it includes Tamil Nadu's 69% reservation law, added by the 76th Amendment, 1994.

Shankari Prasad case (1951): first challenge to the 1st Amendment

• Issue: Zamindars argued that the 1st Amendment took away property rights. They said it was therefore a "law" made void by Art. 13(2).
• Holding: the Supreme Court upheld the 1st Amendment.
• "Law" in Art. 13(2) means ordinary law made under Parliament's normal legislative power.
• It does not cover an amendment made under the constituent power in Art. 368. Constituent power means the power to make or change the Constitution itself.
• So Parliament can amend fundamental rights, including the right to property.

Sajjan Singh case (1965): the first doubts

• The 17th Amendment (1964):
• It widened the meaning of "estate" in Art. 31A to cover more kinds of land, including ryotwari land.

• It added more state land laws to the Ninth Schedule.

• Holding: the majority upheld the 17th Amendment and followed Shankari Prasad.

• Dissenting doubts: Justice Hidayatullah and Justice Mudholkar questioned whether fundamental rights should be so easy to amend.
• Mudholkar's question: the Constitution may have "basic features". Would changing them be an amendment, or a rewriting of the Constitution?
• This was the seed of the basic structure doctrine. Basic structure means Parliament can amend the Constitution but cannot destroy its core features. The Court adopted it in Kesavananda Bharati (1973).

Golaknath case (27 February 1967): the reversal

• Facts: the Golaknath family challenged the Punjab Security of Land Tenures Act, 1953. It had been placed in the Ninth Schedule by the 17th Amendment.
• Bench: 11 judges under CJI K. Subba Rao. It was the largest bench up to that time. It ruled 6:5.
• Holdings of the majority:
• An amendment is "law" under Art. 13. So an amendment that takes away or abridges a Part III right is void.
• Art. 368 gives only the procedure for amendment, not the power. The 1950 heading, "Procedure for the Amendment…", was read as support [4].
• The power comes from elsewhere. It flows from Parliament's ordinary law-making power, with the residuary power (Art. 248 and Entry 97, List I) as its source. Residuary power means power over any subject not listed in the State or Concurrent Lists.

• Result: Parliament cannot take away or abridge fundamental rights, even by amendment.

• Doctrine of prospective overruling: under this doctrine, a court's new ruling applies only to the future. It does not reopen past actions.

• Golaknath used it for the first time in India.
• The 1st, 4th (1955) and 17th Amendments stayed valid, along with the land reform laws passed under them.
• Only amendments made after 27 February 1967 would face the new limit.

• Why: striking down 16 years of land reform would have caused chaos.

• Dissent: the five judges in the minority said a past amendment could not be valid until 1967 and invalid after it, because that would amount to judges amending the Constitution.

After Golaknath: R.C. Cooper and the privy purses case (1970)

• R.C. Cooper (Bank Nationalisation case, 1970):
• The Court struck down the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969, which nationalised 14 banks.
• The reason was that the compensation was illusory (unreal, not a fair value).
• It held that fundamental rights are not isolated compartments. A law must satisfy every right it affects, for example Arts. 14, 19 and 31 together.

• This overturned the A.K. Gopalan (1950) approach, under which each right was read separately.

• Madhav Rao Scindia (Privy Purses case, 1970): the Court struck down the Presidential order abolishing privy purses. Privy purses were annual payments promised to former princely rulers.

• Political fallout: in the 1971 Lok Sabha election, Indira Gandhi's Congress won a large majority and used it to reverse these rulings. The result was:
• 24th Amendment (1971):
  • It added Art. 13(4), so Art. 13 does not apply to amendments made under Art. 368 [6].
  • It renamed Art. 368 to describe a "power" to amend [4][6].
  • It made the President's assent to an amendment bill compulsory.
• 25th Amendment (1971): it replaced "compensation" in Art. 31(2) with "amount" and added Art. 31C.
• 26th Amendment (1971): it abolished privy purses.

• (See congress-system-challenges.)

• Count of amendments: the latest Act in this series is the 106th Amendment Act, 2023. It reserves one-third of seats for women in the Lok Sabha and state assemblies [7]. Bills carry their own numbers, separate from Acts. For example, the Constitution (131st Amendment) Bill, 2026 is a delimitation-related bill [8].

Prelims Hooks

• 1st Amendment, 1951: passed by the Provisional Parliament. It added Art. 15(4), 31A, 31B and the Ninth Schedule. It added "reasonable" restrictions plus public order, friendly relations with foreign states and incitement to an offence to Art. 19(2).
• Ninth Schedule: started with 13 Acts. Item 1 was the Bihar Land Reforms Act, 1950 [5]. It now has about 284 entries and includes TN's 69% quota law (76th Amendment, 1994).
• Art. 31B protection is retrospective: listed laws are not void and are treated as never having become void [2].
• Shankari Prasad (1951): "law" in Art. 13(2) means ordinary law, not an amendment. So fundamental rights can be amended.
• Sajjan Singh (1965): upheld the 17th Amendment (1964). Mudholkar J. raised "basic features".
• Golaknath (1967): 11 judges, 6:5, CJI Subba Rao. Amendment = law. Art. 368 is procedure only. Power comes from the residuary power (Art. 248).
• Trap: Golaknath did not strike down the 1st, 4th or 17th Amendments. It saved them by prospective overruling, used for the first time in India.
• R.C. Cooper (1970): bank nationalisation. Rights are not separate compartments. It overturned A.K. Gopalan.
• 24th Amendment (1971) added Art. 13(4) to undo Golaknath [6].

Mains Points

• Parliamentary sovereignty vs. rights:
• Shankari Prasad view: an elected Parliament must be able to push social reform, such as zamindari abolition, past courts that protect property.

• Golaknath view: an unlimited amending power could empty Part III. Neither extreme lasted. Kesavananda Bharati (1973) found the middle path: Parliament may amend any part, but cannot destroy the basic structure.

• Ninth Schedule as a "shield":

• It was meant to protect land reform.
• It grew from 13 to about 284 entries and came to include reservation and other laws.

• Critics say this let Parliament shut out judicial review, the courts' power to strike down unconstitutional laws. It is a useful example for answers on how Parliament has avoided court checks.

• Prospective overruling as judicial statesmanship:

• It let the Court state a new rule of law without undoing years of land reform.

• Critics say it is judges acting like legislators, which the five dissenting judges also argued.

• Political history (GS-I): R.C. Cooper and the privy purses case turned the conflict between Court and Parliament into an election issue. It led to the 1971 mandate, the 24th–26th Amendments and the push for a "committed judiciary".