L.C. Golaknath V.

State of Punjab & Haryana

The amenability aspect of the fundamental rights was challenged in the said case. The scope of
interpretation of article 368 was also challenged.

Besides this, the validity of the Constitution (First Amendment) Act, 1951216, the Constitution
(Fourth Amendment) Act, 1955 and the Constitution (Seventeenth Amendment) Act, 1964 were
challenged in the said petition. The bench of the Supreme Court that decided the said petition
comprised of the Justice K. Subha Rao, Justice K.N. Wanchoo, Justice M. Hidayatullah, Justice
J.C. Shah, Justice S.M. Sikri, Justice R.S. Bachawat, Justice V. Ramaswami, Justice J.M. Shelat,
Justice V. Bhargava, Justice G.K. Mittar and Justice C.A.Vaidalingam. The Constitution
Seventeenth Amendment Act was held valid by the court.

The court also held that the fundamental rights are outside the amendatory process. It also held
that the Parliament will have no power in future to amend them. It also held that, in future, if any
amendment takes away or abridges the fundamental rights conferred by Part-III then such
amendment will be considered void.

The doctrine of prospective overruling was applied by the court, for the Constitution first, fourth
and seventeenth amendment. The Supreme Court held that there is apparent incapacity of the
Parliament in amending fundamental rights enumerated in amending fundamental rights
enumerated in Part-III of the Constitution of India as per the Scheme of the Constitution and the
nature of freedoms.

Moreover, it also suggested that, if the Parliament wants to amend fundamental rights then it
shall be done by convoking fresh Constituent Assembly. Without such act, the Parliament cannot
immune or attempt to abridge the fundamental rights. The Preamble of the Constitution was also
referred. Justice Hidayatullah held that the duty of the Supreme Court is to look at the
functioning of the Constitution as a whole. At the time of considering the debates of the
Constituent Assembly, the Supreme Court held that it cannot take into account debates in
Constituent Assembly in finding outside scope and extent of article 368. Out of the bench of
eleven judges, five judges were dissenting. They were Justice Wanchoo, Justice Bhargava,
Justice Mitter, Justice Bachawat and Justice Ramaswamy.
The majority of judges in the said petition overruled the judgements given in Shankari Prasad
case and Sajjan Singh Case (Supra). In both these cases, previously, the Supreme Court had held
that fundamental rights could be amended through article 368. The majority of the judges in the
said petition considered fundamental rights as „transcendental‟, in terms of their place and
position in the Constitution of India.

The Supreme Court expressed its fear that if the Parliament amends the fundamental rights then
the time may come when fundamental rights shall be extinguish. It will further make India a
totalitarian State from a democratic State. Justice Subha Rao spoke on behalf of himself and four
other Justices i.e. Justice Shah, Justice Sikri, Justice Shelat and Justice Vaidialingam that for the
development of human personality there must be equated fundamental rights with natural rights.
Justice Subha Rao raised the question that Parliament cannot enact a Bill affecting fundamental
rights through its ordinary legislative process then it cannot abridge the fundamental rights only
by two-third majority. The then Chief Justice of India held that article 368 merely lays done the
procedure for Constitutional amendment but at the same time, the said article did in no way
confer power to amend the Constitution regarding fundamental rights.

The principle laid down by the Supreme Court in Shankari Prasad Case and Sajjan Singh‟s Case
(Supra) was reversed in the said petition. The court adopted the principle that the term law in
article 13(2) includes constitutional law apart from other laws. The court held that the structure
of the constitution cannot be destroyed by applying article 368.

The court held that the constitutional amendment under article 368 especially regarding
amendments in fundamental rights requires ratification by the State Legislature is a wrong
practice. The bar of article 13 is applicable to article 368.

Therefore fundamental rights cannot be amended. They fall outside the preview of amendability
process. The five dissenting judges were in favour of socialism. So, they favoured about the
amendments of fundamental rights. They also held, the first, fourth and seventeenth amendment
of the Constitution valid. The court held that, “the fundamental rights are the rights of the people
preserved by our Constitution. Fundamental rights are the modern name for what have been
traditionally known as „natural rights‟.
According to one author „they are moral rights which every human being everywhere at all times
ought to have simply because of the fact that in contradiction of moral.‟ They are the primordial
rights necessary for the development of human personality.”

The words of Granville Austin were quoted from his book „Indian Constitution Cornerstone of a
Nation‟, that,

“.............the core of the commitment to the social revolution lies in Parts III and IV, in the
fundamental rights and fit the directive principles of state policy. These are the conscience of the
Constitution.”

The words of Shri Motilal Nehru were quoted which he observed in the Madras Congress
Resolution in May, 1928 that,

“It is obvious that our first care should be to have our Fundamental Rights guaranteed in a
manner which will not permit their withdrawal under any circumstances............ Another reason
why great importance attached to a Declaration of Rights is the unfortunate existence of
communal differences in the country. Certain safeguards are necessary to create and establish a
sense of security among those who look upon each other with distrust and suspicion. We could
not, better secure the full enjoyment of religious and communal rights to all communities than by
including them among the basic principles of the Constitution.”

The words of Pandit Jawaharlal Nehru were quoted, which he spoke regarding proposing for the
adoption of the Interim Report on Fundamental Rights on 30-04- 1947 that,

“A fundamental right should be looked upon, not from the point of view of any particular
difficulty of the moment, but as something that you want to make permanent in the Constitution.
The other matter should be looked upon-however important it might be not from this permanent
and fundamental point of view, but from the more temporary point of view.”

Dr. B.R. Ambedkar‟s views were also taken into consideration for this purpose. Dr. B.R.
Ambedkar was of the view that fundamental rights are so important that they cannot be amended
in the manner provided by article 304 of the Draft Constitution i.e. article 368 of the present
Constitution. Justice Hidayatullah gave a separate judgement. He stated in his judgement that
due to article 13, the Parliament is not empowered to amend fundamental rights.
Moreover, according to him, article 13 covers legislative amendments as well as constitutional
amendments. He did not want to disturb the past amendments because they were in existence for
a long time. According to him, if past amendments were disturbed then it will lead to
constitutionless nation. According to him, fundamental rights are outside the amendatory
process. These rights cannot be abridged in any manner. He considered that, in past, in Shankari
Prasad‟s case and Sajjan Singh‟s case the views of the Supreme Court were erroneous regarding
articles 13(2) and 368. Justice Bachawat said that, „the basic theory of our Constitution is that it
cannot be changed by a law or legislative act. The essence of written constitution is that, it
cannot be changed by an ordinary law.‟

The majority of Justices stated that there are no implied restrictions on the applicability of article
13(2). They also stated that the word „law‟ is not used in article 368. They considered
fundamental rights as fundamental needs of the people. So, according to them, they must be
protected.
 Minerva Mills Ltd., Bangalore V. Union of India

The Supreme Court again established the fact that it had already established in Golak Nath‟s
case (supra). It ruled that the Parliament cannot destroy or damage the basic structure or basic
feature of the Indian Constitution under article 368. Minerva Mills was a sick textile undertaking.

The management of the mill was taken over by as per the Sick Textile Undertaking
(Nationalization) Act, 1974. The same was challenged through the said petition before the
Supreme Court. Besides this, the order made under section 18-A of the Industrial (Development
and Regulation) Act, 1951 was also challenged.

The Constitution (Forty-Second Amendment) Act, 1976 introduced clauses-4 and 5 in article
368. The Constitutional validity of the same was also challenged. The validity of the Constitution
(Thirty-Ninth Amendment) Act, 1975 placed the Nationalization Act, 1974 in the IXth Schedule
of the Constitution.

The validity of the same was challenged. The Justices that delivered the judgement in the said
case were Justice Y.V. Chandrachud, Justice P.N. Bhagwati, Justice A.C. Gupta, Justice N.L.
Untwala and Justice P.S. Kailasam. Justice Y.V. Chandrachud in Para 75 considered the 42nd
amendment act beyond the amending power of the Parliament. He considered it void. He
considered the said amendment as destroyer of the basic structure or basic features of the
Constitution of India. Article 31C was also amended through the said amendment.

The majority of judges in the said case considered that fundamental rights occupy a unique place
in the civilized societies of the world. They expressed that it is necessary to maintain harmonious
balance between the fundamental rights and the directive principles of the state policy. Justice
Bhagwati considered the said amendment as unconstitutional. He considered the said amendment
as the damaging one i.e. it damaged the basic structure or basic feature of the Indian
Constitution. He held that the power of the Parliament is limited in amending the Constitution.

It cannot convert into an either absolute power or unlimited power regarding the amendment of
the Constitution pertaining to the basic structure or basic feature through article 368. He was of
the opinion that judicial review of the said petition is also one among the basic feature of the
Indian Constitution.
Regarding judicial review of the said petition, Justice Bhagwati told that-

“It is a cardinal principle of our Constitution that no one however highly placed and no authority
however lofty can claim to be the sole judge of its power under the Constitution or whether its
action is within the confines of such power laid down by the Constitution. The judiciary is the
interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what
is the power conferred on each branch of government, whether it is limited, and if so, what are
the limits and whether any action of that branch transgresses such limits. It is for the judiciary to
uphold the constitutional values and to enforce the constitutional limitations. That is the essence
of rule of law.”

Justice Bhagwati was not consensus with the views of Justice Khanna which he adopted in
Kesavananda Bharati‟s case (supra). Justice Khanna considered the amending power under
article 368 as wide and comprehensive while Justice Bhagwati did not considered it as wide and
comprehensive. He considered it as narrow and limited. He stated that amending power of the
Parliament under article 368, article 31- B and IX schedule were considered constitutionally
valid but these were misapplication of law where unconstitutional aspects were considered valid.

In this way, in the said petition, the Supreme Court delivered the judgement that promoted for
the maintenance of the basic structure or basic features of the Indian Constitution. The only
acceptable outcome of the said amendment was that it amended the Preamble.

The words „Socialist‟ and „Secular‟ were added to the Preamble. This helped in extending the
scope of the Constitution at the time of understanding and interpreting the Constitution. It also
extended the scope of the basic structure or basic features of the Constitution.