Date: 27.04.

2020

Important constitutional amendments

1st amendment in 1951 – Parliament of India amended A. 19

• Inserted A. 31A, 31B, and 9th Schedule

• Validity of 1st amendment challenged in Shankari Prasad Deo case in which the
amendment was upheld
• In Shankari Prasad the bench declared that A. 13(2) does not affect amendments to
the constitution because amendments are not ordinary laws but are exercise of
constituent power. Therefore, A. 13(2) does not govern constitutional amendments
• J. Patanjali Shastri noted the provisions of A. 11 of Japanese constitution (gives
inviolable fundamental rights to current and future generations) and contrasted the
same with A. 368
• A. 13(2): The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void
• A. 13(4): Nothing in this article shall apply to any amendment of this Constitution
made under article 368

4th Amendment Act – Article 19

Article 31A was amended

17th Amendment (1964) – again added Article 31A (44 laws added to 31B)
• These amendments were considered in Sajjan Singh case (5 judge bench) (3
judgments)
• Leading judgment (Gajendra): The power under A. 368 can be exercised over all
amendments of the constitution. Sajjan Singh follows the Shankari Prasad line of
thinking. The SC held that amendment means amendment of all provisions of the
constitution. Doesn’t render the legislatures functus officio. i.e only the validity of
the acts has been saved and the legislature can repeal and amend the acts. The
17th amendment was upheld in this case.
• The proviso to A. 368 affects the federal structure of the constitution and requires
the consent of half of the states
Punjab security and Mysore Land reforms Act were challenged in the 11 - judge bench of
the IC Golaknath case
• CJ Subba Rao for himself, J Shah, J Sikri, J. Shehlat and YV Lingam: gave a
summary of the judgment at the end. 1) Power derived from A. 245, 246 read with
E. 97; 2) Amendment is law within the meaning of A. 13(2) (3) 1st constitutional
amendment and 4th and 17th amendment abridge scope of fundamental rights; 4)
Prospective overruling, said amendment will continue; 5) 17th amendment
constitution holds field, these two acts challenged cannot be questioned that they
violate, 13, 14 or A. 31 6) Parliament has no power to amend part 3 of the
constitution
• Separate concurring judgment by J. Hidayatullah
• J. Wanchoo, J. bhargava and X dissenting opinion
• J. Bachawat and Y separate dissenting opinion
• The majority held that the fundamental rights held that cannot be taken away by
amendment of the constitution and constitutional amendment is law for the
purposes of A. 13(2) and is therefore is subject of Part 3 of the constitution
• Shankari Prasad and Sajjan Singh cases were overruled in this case and the
difference between legislative power and constituent power was obliterated
• A. 368 is not a code by itself and procedure with respect to normal law has to be
followed. A. 368 provides the procedure of amendment and the power to amend is
to be located elsewhere
• Political thicket argument rejected in this case as well.
• The court introduced the concept of “prospective overruling” and did not apply the
normal rule of “retroactivity”. This doctrine was borrowed from the USA. “past
preserved and future protected”. The power was located in A. 141 and A. 142
• Where was the power located? A. 245, 246 and A. 248 read with Entry 97
• IC Golaknath case takes away right of Parliament to amend any of the fundamental
rights