RS Gae - Amendment of Fundamental Rights

AMENDMENT OF FUNDAMENTAL RIGHTS
Author(s): R. S. Gae
Source: Journal of the Indian Law Institute , OCTOBER-DECEMBER 1967, Vol. 9, No. 4
(OCTOBER-DECEMBER 1967), pp. 475-520
Published by: Indian Law Institute
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Journal of The Indian Law Institute
VOLUME 9 OCTOBER - DECEMBER 1967 Number 4
AMENDMENT OF FUNDAMENTAL RIGHTS
R. S. Gae*
I. Fundamental Rights and Directive Principles
Part III of the Constitution containing articles 12 to 35 deals

fundamental rights. Fundamental rights have been aptly describe
the very foundation and corner-stone of the democratic way of life ushered
in this country by the Constitution.1
and are thus paramount from the point of view of the people of
country. Fundamental rights conferred by Part III are a declarati
of great majesty and importance, transcending the every day comm
cial and political hurly-burly as an abiding refuge for the weak a
the oppressed, and an abiding assurance of justice. Mortal
(including even legislators) should be not the masters but the serva
of such high ideals.2
Article 13(2) prohibits the State from making any law wh
takes away or abridges the rights conferred by Part III and furth
provides that any law made in contravention of this article shall,
the extent of the contravention, be void.3
Part IV containing articles 36 to 51 states the directive princip
of State policy. Directive principles contained in this part reflect
social and economic policy of the Constitution-makers as embodie
various provisions of the Constitution. Though the provisions cont
♦Secretary to the Government of India, Ministry of Law, Department of L
Affairs. Views expressed in this article are the personal views of the author.
1. Per Gajendragadkar, C.J., in Saj jan Singh v. State of Raj as than ì [1
1 S.C.R. 933 at 952.
2. See Blackshield, "Fundamental Rights and the Institutional Viability of the
Indian Supreme Court" 8 J .I.L.I. 139 at 164 (1966). Hereinafter cited as Blackshield,
"Fundamental Rights".
3. Ind. Const . arcicle 12 defines "the State" (see infra note 7) and article 13(3) (a)
defines "law". Article 13(3) reads:
In this article, unless the context otherwise requires, -
(a) "law" includes any ordinance, order, byelaw, rule, regulation, notifica-
tion, custom or usage having in the territory of India the force of
law ;
(b) "laws in force" includes laws passed or made by a Legislature or other
competent authority in the territory of India before the commencement
of this Constitution and not previously repealed, notwithstanding that
any such law or any part thereof may not be then in operation either
at all or in particular areas.

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476 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 475
in the said Part are not enforceable by any court, the principles laid down
therein are nevertheless fundamental in the governance of the count
and article 37 makes it obligatory on the part of the State to apply th
principles in making laws. Directive principles are in the nature of
instrument of instruction, which both the Legislature and the execut
are expected to respect and to follow, but they do not confer any co
petence on a Legislature in respect of any matter over which it has n
competence.4
Directive principles cannot in any way override or abridge the
fundamental rights conferred by Part III. On the other hand they
have to conform to and remain subsidiary to the fundamental rights.5
It has been further held that in determining the ambit of fundamental
rights the courts are not to entirely ignore the directive principles
but are to endeavour to give effect to both to the extent possible by
adopting the principle of "harmonious construction."6 It is only in
cases of irreconcilable conflict between fundamental rights and directive
principles that the former prevail over the latter.
Further, the directive principles are applicable not only to the
Legislature and the executive but also to the judiciary, as is clear from
the inclusive definition of "State" contained in article 127 read with
article 3 6. 8 Thus the Supreme Court is as much required to follow
the directive principles as the Legislature and the executive. As a
matter of fact, directive principles have played an important part in
influencing the decisions of the Court in several cases.9
II. Three Kinds of Amendments of the Constitution
The Constitution provides for three kinds of amendments

provisions, namely : -
(i) amendments which can be effected by a simple majority
as that required for the passing of any ordinary law ;
(ii) amendments which can be effected by special majority a
down in article 368 ; and
4. F . N. Balsar a v. State of Bombay, (1951) Bombay 17 at 37, overruled on

grounds by the Supreme Court in appeal vide [1951] S.C.R. 682.
5. State of Madras v. Champakam Dorairajan, [1951] S.C.R. 525 at 531, f
in Mohd. Hanif Quareshi v. State of Bihar, [1959] S.C.R. 629 at 648 and In re th
Education Bill 1957, [1959] S.C.R. 995 at 1022.
6. In re The Kerala Education Bill, 1957 , [1959] S.C.R. 995 at 1022.
7. Ind. Const . article 12 reads :
In this part, unless the context otherwise requires, "the State" includes the
Government and Parliament of India and the Government and the Legislature
of each of the States and all local or other authorities within the territory of
India or under the control of the Government of India.
8. Ind. Const, article 36 :
In this Part, unless the context otherwise requires, "the State" has the same
meaning as in Part III.
9. See State of Bihar v. Kameshwar Singh of Darbhanga, [1952] S.C.R. 889 at 941,
Bij ay Cotton Mills v. State of Ajmer , [1955] S.C.R. 752 and Crown Aluminium Works v
Their Workmen, [1958] S.C.R. 651 at 660.

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1967] AMENDMENT OF FUNDAMENTAL RIGHTS 477
(iii) amendments which require, in addition to the spec

referred to in item (ii) above, ratification by resolut
by not less than one-half the States.10
A. Amendment by Simple Majority
There are a number of constitutional provisions wh
ainended by a simple majority of Parliament. But the
itself stipulates that they are not considered to be "amendm
Constitution. Prominent among these are : laws regarding
or establishment or formation of new States and alteration
boundaries or names of existing States;11 laws providing for t
10. Ind. Const . article 368 :

An amendment of this Constitution may be initiated only by the introduction
of a Bill for the purpose in either House of Parliament, and when the Bill is
passed in each House by a majority of the total membership of that House and
by a majority of not less than two-thirds of the members of that House present
and voting, it shall be presented to the President for his assent and upon such
assent being given to the Bill, the Constitution shall stand amended in
accordance with the terms of the Bill :
Provided that if such amendment seeks to make any change in -
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI,
or
(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament or,
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less
than one-half of the States ... by resolutions to that effect passed by those
Legislatures before the Bill making provision for such amendment is presented
to the President for assent.
1 1 . The relevant articles, 2, 3 and 4 read as under :
Article 2 :
Parliament may by law admit into the Union, or establish, new States on such
terms and conditions as it thinks fit.
Article 3 :
Parliament may by law -
(a) form a new State by separation of territory from any State or by
uniting two or more States or parts of States or by uniting any territory
to a part of any State ;
(b) increase the area of any State ;
(c) diminish the area of any State ;
(d) alter the boundaries of any State ;
(*) alter the name of any State ;
Provided that no Bill for the purpose shall be introduced in either House of
Parliament except on the recommendation of the President and unless, where
the proposal contained in the Bill affects the area, boundaries or name of any
of the States, the Bill has been referred by the President to the Legislature of
that State for expressing its views thereon within such period as may be
specified in the reference or within such further period as the President may
allow and the period so specified or allowed has expired.
Article 4 :
(1) Any law referred to in article 2 or article 3 shall contain such provisions
for the amendment of the First Schedule and the Fourth Schedule as may be
necessary to give effect to the provisions of the law and may also contain such
supplemental, incidental and consequential provisions (including provisions as
to representation in Parliament and in the Legislature or Legislatures of the
State or States affected by such law) as Parliament may deem necessary.
' 2) No such law as aforesaid shall be deemed to be an amendment of this
Constitution for the purposes of article 368.

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or creation of the Legislative Council in a State;12 laws creating lo

legislatures or councils of ministers or both for certain Union terri
ries.13 Similarly, laws made by Parliament pursuant to paragraph
of the fifth schedule (dealing with the administration and control
scheduled areas and sheduled tribes) and paragraph 21(2) of th
sixth schedule (dealing with administration of the tribal areas
Assam) are not deemed to be amendments to the Constitution.
The aforesaid provisions afford examples14 of the exercise of th
constituent power of Parliament without following the special proced
laid down in article 368 of the Constitution.
It is significant that articles 4(2), 169(3) and 239A(2), para-

graph 7(2) of the fifth schedule and paragraph 21(2) of the sixth
schedule are in the negative form and use the expression
no such law as aforesaid shall be deemed to be an amendment of this Consti-
tution for the purposes of article 368.
This phraseology clearly shows that such laws would, in the absence of
a contrary provision, be laws regarding amendment of the Constitution
for the purposes of article 368. But the above articles and paragraphs
specifically provide that they shall not be deemed to be so.
These provisions further show that the framers of the Constitu-
tion took meticulous care in excluding certain laws amending the
Constitution from the scope of article 368 whenever they so intended.
12. Ind.. Const, article 169 :
(1) Notwithstanding anything in article 168, Parliament may by law provide
for the abolition of the Legislative Council of a State having such a Council
or for the creation of such a Council in a State having no such Council, if the
Legislative Assembly of the State passes a resolution to that effect by a majority
of the total membership of the Assembly and by a majority of not less than
two-thirds of the members of the Assembly present and voting.
(2) ...
(3) No such law as aforesaid shall be deemed to be an amendment of this
Constitution for the purposes of article 368.
13. Ind. Const, article 239A :
(1) Parliament may by law create for any of the Union territories of
Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu, and Pondi-
cherry -
(a) a body, whether elected or partly nominated and partly elected, to
function as a Legislature for the Union territory, or
( b ) a Council of Ministers,
or both with such constitution, powers and functions, in each case, as may be
specified in the law.
(2) Any such law as is referred to in clause (1) shall not be deemed to be an
amendment of this Constitution for the purposes of article 368 notwithstanding
that it contains any provision which amends or has the effect of amending
this Constitution.
14. Article 1 1 empowering Parliament by law to regulate the right to citizenship
affords by implication a further example of amendment of certain provisions of the
Constitution by a simple majority.

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It follows that the special procedure for amendment of t

tion contained in article 368 does not apply to such laws,
therefore be enacted by a simple majority needed for mak
laws even though they contain provisions which amend o
effect of amending the Constitution.
B. Amendment by Special Majority
All constitutional amendments other than those referred to above
in first kind of amendments come under this category and are dealt
with in article 368 of the Constitution. Such amendments can only
be effected by a Bill passed by a special majority, namely, the majority
of the total membership (that is, by an absolute majority), of each
House of Parliament as well as by a majority of not less than two-
thirds of the members of that House present and voting. When the
Bill is passed by the majority in this manner it is required to be
presented to the President for his assent. Upon receiving the Presi-
dent's assent the Constitution stands amended in accordance with the
terms of the Bill.15 The procedure for enacting these amendments is
quite different and distinct from the procedure for enacting ordinary
laws as contained in articles 107 to 111 of the Constitution.
C. Amendment by Special Majority and Ratification by

State Legislatures
These amendments deal with changes in certain provisions of

the Constitution set out in the proviso to article 368 as "entrenched"
provisions, and require, over and above the special majority required
for the second kind of amendments, ratification by resolutions passed by
not less than one-half of the State Legislatures before the Bill amending
the Constitution is presented to the President for assent.16 Participation
by States in the amendment of these provisions, which are of vital interest
to them, is essential. If any unilateral amendment of these provisions
by Parliament be permitted, it would affect the fundamental basis of
the constitutional system.
There is no time limit prescribed by the article during which a
State may accept or reject the proposed amendment falling under the
proviso to article 368. Further there is nothing in the Constitution to
prevent a State which has once rejected the amendment from ratifying
it subsequently. Before the amendment becomes effective a State
which has already ratified the amendment may subsequently attempt
to retract such ratification.17 Thus the States have the veto power in
15. There is no question of a Bill for amendment of the Constitution being passed
at a joint sitting of both Houses of Parliament as in the case of a Bill for making an
ordinary law passed at the joint sitting as provided in article 108.
16. See supra note 10. It is noticed that in respect of 4 'entrenched" provssions
the power to amend the Constitution is not the exclusive power available to Parliament,
but is the power available to Parliament and State Legislatures jointly.
17. However, it has been held in the United States that a state cannot withdraw
its ratification after having notified it to Secretary of State. See Coleman v. Miller ,
307 U.S. 433 [1939].

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the matter and may effectively delay an amendment for an indefi

period.
It is rather anomalous that article 226 (dealing with power of
High Court to issue certain writs)18 is covered by the "entrenched"
provisions contained in the proviso to article 368, but article 32 (dealing
with remedies for enforcement of the fundamental rights)19 is not so
covered. As a matter of fact the whole of Part III is excluded from
the "entrenched" provisions, though some of these provisions are
definitely not so vital as the fundamental rights. Article 32 is definitely
not less vital than article 226, more so when article 32 expressly
provides that the rights guaranteed by the article shall not be suspended
except as otherwise provided for by the Constitution.20 These anomalies,
disclosed by a careful scrutiny of article 368, require to be removed by
suitably amending the article.
Article 368 shows that the f ramer s of the Constitution in formula-
ting the principles governing any amendment of the Constitution
combined both rigidity and flexibility bearing in mind the basic idea
that the Constitution should as a dynamic document grow with the
growing nation and should be adaptable to the changing circumstances
and changing needs of the society.
III. Fundamental Rights and Amendments
to Property Rights
In Golak Math v. State of Punjab 21 the validity of the Constitut

(First Amendment) Act, 1951, the Constitution (Fourth Amend
(1) Notwithstanding anything in article 32, every High Court shall have
power, throughout the territories in relation to which it exercises jurisdiction,
to issue to any person or authority, including in appropriate cases any Govern-
ment, within those territories directions, orders or writs, including writs in the
nature of habeas corpus , mandamus , prohibition, quo warranto and certiorari , or
any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
(1A)....
(2) The power conferred on a High Court by clause (1), or clause (1A) shall
not be in derogation of the power conferred on the Supreme Court by clause
(2) of article 32.
(1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus , mandamus , prohibition, quo
warranto and certiorari , whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by
clauses (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.
20. See supra note 19.
21. A.I.R. 1967 S.C. 1643. This case will hereafter simply be referred to as
Golak Nath.

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Act, 1955, and the Constitution (Seventeenth Amendment

was challenged. Before considering the decision of the Sup
we will briefly examine, in their context, the three amendm
right to property.
A. The First Amendment
Article 31 dealing with compulsory acquisition of property as

originally framed provided that no property shall be acquired by the
State except by law providing for compensation for such acquisition.22
Soon after the commencement of the Constitution several state govern-
ments carried out certain measures of agrarian reforms in Bihar,
Madhya Pradesh and Uttar Pradesh by having enacted legislation
which may compendiously be referred to as Zamindari Abolition Acts.
The validity of these Acts was challenged in the High Courts in spite of
the safeguards provided by clauses (4) 23 and (6) 24 of article 31 on the
ground that they contravened fundamental rights conferred by Part III
of the Constitution. The Patna High Court held that the Bihar Land
Reforms Act, 1950, was unconstitutional.25 On the other hand the
Allahabad26 and the Nagpur27 High Courts upheld the validity of the
corresponding laws in Uttar Pradesh and Madhya Pradesh respectively.
Appeals from these decisions were pending before the Supreme Court
in the year 1951. With a view to putting an end to the dilatory
litigation and fully safeguarding the various land reform laws against
22. The relevant part of article 31, as originally enacted, read as under :
(1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in
any company owning, any commercial or industrial undertaking, shall be
taken possession of or acquired for public purposes under any law authorising
the taking of such possession or such acquisition, unless the law provides for
compensation for the property taken possession of or acquired and either fixes
the amount of compensation, or specifies the principles on which, and the
manner in which, the compensation is to be determined and given.
23. Ind . Const, article 31 :
(4) If any Bill pending at the commencement of this Constitution in the
Legislature of a State has, after it has been passed by such Legislature, been
reserved for the consideration of the President and has received his assent,
then, notwithstanding anything in this Constitution, the law so assented to
shall not be called in question in any court on the ground that it contravenes
the provisions of clause (2).
(6) Any law of the State enacted not more than eighteen months before the
commencement of this Constitution may within three months from such
commencement be submitted to the President for his certification; and there-
upon, if the President by public notification so certifies, it shall not be called
in question in any court on the ground that it contravenes the provisions of
clause (2) of this article or has contravened the provisions of sub-section (2) of
section 299 of the Government of India Act, 1935.
25. Kameshwar Singh v. State of Bihar, (1951) Pat. 454 (F.B.); A.I.R. 1951 Pat. 91
(F.B.)-
26. Suryapal Singh v. State of U.P., (1952) 2 All. 46; A.I.R. 1951 All. 674.
27. Ganpatrao Pande v. State , (1953) Nagpur 1 : See also 1 A.I.R., Notes of
Unreported cases 1341 (1955).

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any attack for violation of fundamental rights, it was decided to am

the Constitution. The Provisional Parliament28 accordingly enacted
Constitution (First Amendment) Act, 1951, so as to place the l
abolishing the Zamindari system in different States beyond challenge
courts of law. Thus the amendment became necessary to achieve th
objective of agrarian reforms, having regard to the directive princi
of State policy contained in article 39 included in Part IV of
Constitution.29
The Amendment Act inserted two new articles, namely, article 31 A

and article 3 IB. Article 31 A broadly provides that no law providin
for the acquisition by the State of any estate (the expression "esta
is defined in the article) or of any rights therein shall be deemed to
void on the ground that it is inconsistent with, or takes away
abridges, any of the rights conferred by, any provisions of Part III
28. The Constituent Assembly formed in 1946 to frame the Constitution continu
to function as the Provisional Parliament even after the commencement of the Consti-
tution till the new Parliament was constituted after the first general elections in the
year 1952.
29. Ind . Const . article 39 :
The State shall, in particular, direct its policy towards securing -
(a) that the citizens, men and women equally, have the right to an adequate
means of livelihood ;
(b) that the ownership and control of the material resources of the com-
munity are so distributed as best to subserve the common good ;
(c) that the operation of the economic system does not result in the concen-
tration of wealth and means of production to the common detriment ;
(d) that there is equal pay for equal work for both men and women ;
(«) that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or
strength ;
(f) that childhood and youth are protected against exploitation and against
moral and material abandonment.
30. Ind. Const . article 31 A, as inserted by the Constitution (First Amendment)
Act, 1951 :
(1) Notwithstanding anything contained in article 13, no law providing
for -
(a) the acquisition by the State of any estate or of any rights therein or
the extinguishment or modification of any such rights, or
( b ) the taking over of the management of any property by the State for a
limited period either in the public interest or in order to secure the
proper management of the property, or
(c) the amalgamation of two or more corporations either in the public
interest or in order to secure the proper management of any of the
corporations, or
(d) the extinguishment or modification of any rights of managing agents,
secretaries and treasurers, managing directors, directors or managers of
corporations, or of any voting rights of shareholders thereof, or
(i e ) the extinguishment or modification of any rights accruing by virtue of
any agreement, lease or licence for the purpose of searching for, or
winning, any mineral or mineral oil, or the premature termination or
cancellation of any such agreement, lease or licence,
shall be deemed to be void on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by article 14, article 19 or
article 31 :
Provided that where such law is a law made by the Legislature of a State,
the provisions of this article shall not apply thereto unless such law, having
been reserved for the consideration of the President, has received his assent.
(2) In this article, -
(a) the expression "estate" shall, in relation to any local area, have the same
meaning as that expression or its local equivalent has in the existing law
relating to land tenures in force in that area, and shall also include any
jagir , inam or muafi or other similar grant ;
(b) the expression "rights", in relation to an estate, shall include any rights
vesting in a proprietor, sub- proprietor, under-proprietor, tenure-holder
or other intermediary and any rights or privileges in respect of land
revenue.

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Article 3 IB validated retrospectively thirteen Acts and

specified in the ninth schedule to the Constitution, which,
a provision, would have been liable to be impugned under artic
Thus these thirteen Acts and Regulations32 cannot now b
for violating articles 14, 19 and 31 of the Constitution.
The validity of this amendment was challenged in the
Court in Sankari Prasad v. Union of India 33 when a Const
consisting of five Judges unanimously took the view tha
"law" must ordinarily include constitutional law, ther
demarcation between ordinary law made in exercise of
power and constitutional law made in exercise of constitue
Relying on the doctrine of "harmonius construction"35 the Co
in the context of article 13 "law" must be taken to mean rules and
regulations made in exercise of the ordinary legislative power and not
amendments to the Constitution made in exercise of constituent power
and hence article 13(2) does not affect the amendments to the Consti
tution made under article 368. Thus, article 13(2) was read by the
Supreme Court as controlled and qualified by article 368. The effect
of the Supreme Court decision in a nutshell is that though fundamenta
rights conferred by Part III impose fetters and limitations on the powe
of the Legislature and the executive, they are not inviolable or trans-
cendental, but are subject to the power of Parliament to amend the
Constitution as provided in article 368.
B. The Fourth Amendment
In State of West Bengal v. Bela Banerjeez 6 the Supreme Court held

that the compensation payable for property compulsorily acquired under
article 31(2) is the just equivalent of what the owner has been deprived
of at or about the time of acquisition of the property and that the
issue regarding the payment of compensation is justiciable.37 Though
the article does not mention "just" or "adequate" or "full"
31. Ind. Const, article 3 IB, as inserted by the Constitutson (First Amendment) Act,
1951 :
Without prejudice to the generality of the provisions contained in article 31 A,
none of the Acts and Regulations specified in the Ninth Schedule nor any of
the provisions thereof shall be deemed to be void, or ever to have become
void, on the ground that such Act, Regulation or provision is inconsistent
with, or takes away or abridges any of the rights conferred by, any provisions
of this Part, and notwithstanding any judgment, decree or order of any court
or tribunal to the contrary, each of the said Acts and Regulations shall, subject
to the power of any competent Legislature to repeal or amend it, continue in
force.
32. See Ind. Const. Ninth Schedule.
33. [1952] S.G.R. 89. Hereinafter referred to as Sankari Prasad.
34. See Id, at 106.
35. Id. at 106-07.
36. [1954] S.C.R. 558.
37. Id. at 564-65.

14.139.58.155 on Tue, 30 Jan 2024 13:25:21 +00:00
compensation,38 the Court took the view that "compensation" mean

"just compensation".39
If the compensation for property acquired were to be paid to it
owner on the basis of its just equivalent or market value as held by t
Supreme Court, it would have seriously affected the economy an
obstructed the fulfilment of the objective of land reforms. Further, some
of the judicial decisions interpreting articles 14, 19 and 31 40 made
difficult for Government to implement other important social welfa
legislation. This led to the enactment of the Constitution (Fourt
Amendment) Act, 1955.
By a major change to article 31(2) the Fourth Amendment Act
provided that though compensation should be paid for land compul-
sorily acquired, the quantum of compensation should be left to b
determined by the legislature and that it should not be open to the
Courts to go into the question as to whether the compensation provid
under the law is adequate or not.41 Thus the question of adequacy of
compensation is withdrawn from the field of judicial determination a
is left exclusively with the legislature.
When the compensation payable for the property compulsorily
acquired is not justiciable, the question arises as to whether the right
property continues to remain a fundamental right in reality. T
main feature of a fundamental right is that it is guaranteed against
any arbitrary acts of the executive and caprices of the party in powe
in the Legislature. The amendment of article 31(2) would adverse
affect this guarantee. Some critics have pointed out that
the sanctity of property is lost, unjust compensation is legalised and the
totalitarian trends are encouraged under cover of the doctrine of "Parliamentary
supremacy."42
However, subsequent Acts nationalizing some of the industries43 show
38. Id. at 564. See also supra note 22.

39. As regards the provision for "just compensation" in the Fifth Amendment to
the United States Constitution it was held that the word "just" was really redundant
Monogahela Navigation Co. v. U.S., 148 U.S. 312 at 326 (1893). Similarly in the pro
sion for "compensation" in article 31(2) the idea of justness has been treated to b
implicit.
40. See infra note 44.
41. See Ind. Const, article 31(2) :
No property shall be compulsorily acquired or requisitioned save for a public
purpose and save by authority of a law which provides for compensation for
the property so acquired or requisitioned and either fixes the amount of the
compensation or specifies the principles on which, and the manner in which,
the compensation is to be determined and given; and no such law shall be
called in question in any court on the ground that the compensation provided
by that law is not adequate.
42. Quoted in Pylee, Constitutional Government in India 303 (1965). See also
Douglas, From Marshall to Mukherjea : Studies in American and Indian Constitutional Law
224 (1956).
43. E.g., the State Bank of India Act, 1955, and the Life Insurance Corporation
Act, 1956.

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that the compensation paid for acquisition in such case

equitable and hence the above criticism does not seem justi
To overcome the difficulty in view of certain decisio

Supreme Court regarding the meaning of compulsory acq
requisition of the property as contemplated by article 31(2
inserted article 3l(2A) expressly providing that a law whi
provide for the transfer of ownership or right to posses
property to the State or to a corporation owned or contr
State shall not be deemed to be a law for compulsory a
requisition of property as contemplated by article 31(2) of
tution. The Amendment Act made further alterations in
whereby certain types of laws have been protected again
19 and 31. 45 Further the Amendment Act added seven more Acts in the
ninth schedule to the Constitution, making them immune from challenge
for violating any of the provisions contained in Part III. It also gave
retrospective effect to the above provisions.
C. The Seventeenth Amendment
The Kerala Agrarian Relations Act, 1961, was struck down by

the Supreme Court in its application to ryotwari lands transferred from
the State of Madras to Kerala. The Supreme Court, reiterating its
earlier view confining the operation of article 31A(2)(ö) to "agrarian
reform,"46 held that such ryotwari lands were not "estates" within the
meaning of that article and hence, the Act was not protected under
article 31A(l) from attack under articles 14, 19 and 31 of the
Constitution.47
The attribution by the Supreme Court of a restricted meaning to

the expression "estate" in its application to ryotwari lands, resulted in
the Constitution (Seventeenth Amendment) Act, 1964, which enlarged
the definition of "estate" as contained in article 31A(2)(a) so as to
cover any land held under ryotwari settlement as well as other lands in
respect of which provisions are normally made in land reform enact-
44. State of West Bengal v. Subodh Gopal Bose , [1954] S.C.R. 587, Dwarkadas
Shrinioas v. Sholapur Spinning and Weaving Co. Ltd., [1954] S.C.R. 674 and Saghir Ahmed
v. State of Uttar Pradesh , [1955] 1 S.C.R. 707.
45. And not against all the provisions of Part III, as was done by the Constitution
(First Amendment) Act, 1951.
46. E.g., K. K. Kochuni v. State of Madras , [1960] 3 S.C.R. 887.
47. Karimbil Kunhikoman v. State of Kerala , [1962] Supp. 1 S.C.R. 829, followed in
A. P. Krishnaswami Naidu v. State of Madras , [1964] 7 S.C.R. 82, in which case the
scheme of compensation provided in the Madras Land Reforms (Fixation of Ceiling on
Land) Act, 1961, was declared ultra vires the Constitution.

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ments.48 The Amendment Act further inserted forty-four mor

relating to land reform in the ninth schedule to the Constitution in
to remove any uncertainty or doubt that might arise in regard t
validity.49
The validity of this amendment was challenged in Sajjan Singh v.
State of Rajasthan 50 before a Constitution Bench consisting of five Judges.
The Supreme Court, following its earlier decision in Sankari Prasad
held by a majority of three to two that the word "law" in article 13(2)
does not include a law passed by Parliament by virtue of its constituent
power to take away or abridge the fundamental rights guaranteed by
Part III of the Constitution.51 Though the Court incidentally
considered the question of application of the doctrine of stare decisis , it
rejected the plea for reconsideration of its earlier decision.52 On the
other hand two of the Judges (Hidayatullah and Mudholkar, JJ.)
expressed doubts as to whether the word "law" in article 13(2)
excluded constitutional amendments and as to whether article 368
empowered Parliament to amend Part III of the Constitution.53
48. See Ind. Const, article 31A(2)(a) :
(2) In this article, -
(a) the expression ' 'estate" shall, in relation to any local area, have the
same meaning as that expression or its local equivalent has in the
existing law relating to land tenures in force in that area and shall also
include -
( i ) any jagir , inam or muafi or other similar grant and in the States of
Madras and Kerala, any janmam right ;
(it) any land held under ryotwari settlement ;
(iii) any land held or let for purposes of agriculture or for purposes
ancillary thereto, including waste land, forest land, land for pasture
or sites of buildings and other structures occupied by cultivators of
land, agricultural labourers and village artisans ;
(b) the expression "rights", in relation to an estate, shall include any rights
vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder,
raiyat, under-raiyat or other intermediary and any rights or privileges in
respect of land revenue.
Some of the post Seventeenth Amendment decisions, however, show a tendency
towards a liberal interpretation of article 31 A 1(a). In Ranj it Singh v. State of Punjab
[(1965) 1 S.C.R. 82 J the Supreme Court followed the view that article 31 A was enacted
only to implement agrarian reform, but gave a comprehensive meaning to the expres-
sion "agrarian reform" so as to include provisions made for the development of the
rural economy. The decision in effect, widens the connotation of agrarian reform.
In Vajravelu Mudaliar v. Special Deputy Collector [(1965) 1 S.C.R. 614] the Supreme
Court, following its decisions in Kochuni and Ranjit Singh referred to above, held that
article 31 A applies only to a law made for acquisition of any "estate" if such acquisi-
tion is connected with agrarian reform and further held that the object of slum
clearance for which the land was stated to have been acquired under the Land Acquisi-
tion (Madras Amendment) Act, 1961, could not be related to agrarian reform in its
limited or wider sense.
In Deputy Commissioner , Kamrup v. Durga Nath Sarma , (Civil Appeal No. 1100 of
1966 decided on September 15, 1967, not yet reported), the Supreme Court held that
"it is now well-settled that article 31 A envisages only laws concerning agrarian
reform."
49. The Amendment Bill inserted as many as one hundred and twenty-four Acts
in the ninth schedule. The Joint Committee retained only thirty-six and added eight
more to the list. Thus the Amendment Act now contains forty-four Acts in the list.
50. [1965] 1 S.C.R. 933. Hereinafter referred to as Sajjan Singh .
51. Id. at 951-52.
52. Id. at 947-48.
53. Id. at 959, 961 and 968.

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D. An Evaluation
It must be acknowledged that the above three Amendment Acts

affected or abridged the right to property. The amendments were, how
ever, considered necessary to obviate the adverse effect of some o
the judicial decisions which virtually had the effect of frustrating wh
Parliament considered important socio-economic measures for the welfare
of the country. Besides the Parliament considered that directive
principles of State policy could not be duly implemented so long
the provisions regarding right to property remained as originall
enacted in the Constitution and as interpreted by the Supreme Court.
These amendments could have been probably avoided if the
Supreme Court had adopted a more flexible and constructive approach
to the provisions relating to the right to property as read with Part IV
of the Constitution.54 This was emphatically acknowledged by Mr.
Justice Hidayatullah in Golak Nath.55 In construing provisions of the
Constitution the interpretation to be favoured should be dynamic,
flexible and constructive and not static, rigid or intransigent and the
import of Part III must be adaptable to the changing social circum-
stances and the changing needs of the society.
No doubt, the twenty-one amendments to the Constitution since
its adoption illustrate the fact that the amending power has been used
rather freely upto now. This frequency of amendments (resulting in
twenty-one changes in seventeen years) has been criticised by many as
a sign of weakness on the part of the Government as well as the Legis-
lature. There is an element of truth in this criticism. Rapid successive
amendments of the Constitution are not conducive to the constitutional
stability and call for a note of caution or circumspection on the part of
the legislature in future.
It must at the same time be noted that though the Constitution
has been amended twenty-one times, most of the fundamental rights
including right to equality, rights relating to freedom of speech and
expression, assembly, associations or unions and free movement, right to
freedom of religion and cultural and educational rights conferred by
Part III have practically remained unaltered. Only the right to
property, which is also a fundamental right, has been amended by the
First, Fourth and Seventeenth Amendment Acts (as seen above) and this
has resulted in abridging or restricting that right. But the very
rationale of incorporating this right in Part III has often been
questioned. Most recently, Mr. Justice Hidayatullah opined that "it
was an error to place it in that category" and added that "of all the
fundamental rights it is the weakest."56
Be that as it may, the above Amendment Acts were enacted by
Parliament on the ground that the property rights of individuals should
54. Cf. Blackshield, "Fundamental Rights" supra note 2, Appendix, at 190-203.

55. Golak Nath at 1710.
56. Ibid.

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not be allowed to come in the way of development of the coun

towards an egalitarian society. The laissez faire concept of preferring th
right to property of individuals over the larger interest of the society a
such must give way to the growing needs of the country, having reg
to the object of achieving the socialist pattern of society on which
Constitution is based. In the last century the primary function of t
State was maintenance of law and order and other activities were mo
left to private competitors. This concept has now undergone a cha
and we are now having a "welfare State" to be developed on the ba
of directive principles of State policy contained in Part IV. This obj
could not be achieved under the provisions of Part III of the Consti
tion as they originally stood and as they were interpreted by
Supreme Court, necessitating thereby the abridgment of the righ
property as mentioned above.56®
In so far as the criticism of the amendments is specifically
directed to the technique of the ninth schedule, it has to be recogn
that it is not justifiable as a legitimate exercise of the amending pow
At present as many as sixty four Acts and Regulations enjoy the she
of the ninth schedule. They cannot be challenged as violative of an
of the provisions contained in Part III of the Constitution. These A
and Regulations were primarily intended to secure agrarian reform w
a view to removing difficulties experienced in the fulfilment of the soc
economic policy of the State during the last several years. Som
these Acts were inserted in the ninth schedule ex abundanti cautela with a
view to avoiding any doubt as to their validity, though they were held
to be valid by the courts. However, the addition of as many as sixty
four Acts and Regulations in the ninth schedule became the subject
matter of severe criticism in Golak Nath especially by Mr. Justice
Hidayatullah, who observes :
Giving protection to statutes of State Legislatures, which offend the Constitution
in its most fundamental part, can hardly merit the description amendment
of the Constitution .... Ours is the only Constitution in the world which
carries a long list of ordinary laws which it protects against itself.'7
56a. The Constitution is an organic documant meant to serve as a guide to the

solution of changing and multifarious problems arising in the country. It must
therefore be read
as the revelation of the great purposes which were intended to be achieved by
the Constitution as a continuing instrument of government.
Per Stone, J., in U.S. v. Classic , (1941) 313 U.S. 299 at 316. Hence the words used
in the Constitution may also change their meaning and significance, consistently with
the needs and requirements of a progressive and dynamic society. It is not strictly
necessary to adhere faithfully to the language and text of the Constitution for all times
to come. In view thereof construction of the Constitution should be favoured which
makes it dynamic rather than static, having regard to the day to day development of
the country. However, the construction of right to property conferred by articles 31
and 31 A favoured by the Supreme Court virtually resulted in "freezing" the future
. development of the country and ultimately made it difficult to apply directive princi-
ples. This left no alternative to Parliament but to amend the said articles by the three
Amendment Acts referred to above.
57. Golak Nath at 1716 and 1717.

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Further in Golak Nath Mr. Justice Hidayatullah expre

hension that "the erosion of the right to property may
against other fundamental rights" and in view thereof he
Parliament had no power to abridge or take away fundame
The possibility of such erosion, however, cannot be the tes
of such power. Moreover, in view of the history of the three
Amendment Acts and the fact that they primarily dealt with the right
to property, it would be far from accurate to say that there have been
frequent amendments of the Constitution which have resulted in
whittling down the fundamental rights or that large scale inroads or
erosion of the fundamental rights has been made by Parliament during
the last seventeen years. Finally, having regard to the strength of
different parties in the newly elected House of the People it would now
be very difficult to secure the passage of an amendment to the Consti-
tution by the special majority required by article 368. All the same,
in view of the anxiety and apprehension caused by the existing
amendments to fundamental rights, it is submitted that such amendments
may be made more rigid by requiring ratification by the Legislatures of
not less than two thirds of the States in addition to the special majority
required by the article.
IV. GOLAK NATH : A Critique

A. Judgment in Golak Nath
As noted above, in Golak Nath the validity of the three property

amendments was challenged and the Supreme Court was asked to
reconsider its earlier decisions in Sankari Prasad and Saj jan Singh . In
view of the importance of the issues raised the matter was considered
by the Full Court consisting of eleven Judges for the first time in the
history of India since the commencement of the Constitution. Mr. Chief
Justice Subba Rao, on behalf of himself and four other Judges (Shah,
Sikri, Shelat and Vaidialingam, JJ.) delivered the majority judgment.
Mr. Justice Hidayatullah, in a separate judgment, concurred in the
conclusion arrived at by the Chief Justice. On the other hand, the
remaining five Judges differed from the Chief Justice. Mr. Justice
Wanchoo (as he then was), on behalf of himself and two other Judges
(Bhargava and Mitter, JJ.) delivered a dissenting judgment. Ramaswami
and Bachawat, jj- delivered separate opinions mainly concurring with
the conclusions arrived at by Mr. Justice Wanchoo. This historic
judgment of the Supreme Court has far reaching effect on the Consti-
tution, specially on the future of fundamental rights.
The following principles emerge from the majority judgment given
by six Judges of the Supreme Court, namely : -
(a) Article 368 only provides for the procedure to be followed
regarding amendment of the Constitution.
58. Id. at 1715.

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(b) Article 368 does not contain the actual power to amen
the Constitution.
(c) The power to amend the Constitution is derived from

articles 245, 246 and 248 and entry 97 of the Union List.
(d) The expression "law" as defined in article 13(3) includes
not only the law made by Parliament in exercise of its
ordinary legislative power but also an amendment of the
Constitution made in exercise of its constituent power.
(e) An amendment of the Constitution, being a law within
the meaning of article 13(3), would be void under
article 13(2) if it takes away or abridges the rights
conferred by Part III of the Constitution.
(f) The Constitution (First Amendment) Act, 1951, the
Constitution (Fourth Amendment) Act, 1955, and the
Constitution (Seventeenth Amendment) Act, 1964, abridge
the scope of the fundamental rights and are therefore
void under article 13(2) of the Constitution.
(g) Parliament will have no power from the date of the
decision to amend any of the provisions of Part III of
the Constitution so as to take away or abridge the funda-
mental rights enshirned therein.
(h) On the application of the doctrine of "prospective
overruling" the decision of the Court will have only
prospective operation and hence the aforesaid three
Amendment Acts will continue to be valid. (Mr. Justice
Hidayatullah would invoke "acquiescence" to validate
these Amendments).59
In effect the majority judgment given by six Judges overruled the
unanimous decision of five Judges in Sankari Prasad and the majority
judgment of three Judges in Saj jan Singh .
The following principles emerge from the minority judgment
given by five Judges of the Supreme Court, namely : -
(a) Article 368 contains not only the procedure for amend-
ment of the Constitution but also the power to amend
the Constitution.
(b) The power to amend the Constitution is derived from

article 368 and not from articles 245, 246 and 248 and
entry 97 of the Union List.
(c) The power to amend the Constitution under article 368
includes the power to amend any part of the Constitution
including Part III.
59. See Id. at 1658, 1669 (Mr. Chief Justice Subba Rao); and 1718 (Mr. Justice
Hidayatullah) .

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(d) "Law" as defined in article 13(3) means only the law

in exercise of the ordinary legislative power and not
amendment to the Constitution made in exercise of the
constituent power.
(e) Article 13(2) does not affect the constituent power given
by article 368 to amend any part of the Constitution
including Part III.
(f) Amendment of the Constitution made under article 368
can take away or abridge any of the rights conferred by
Part III.
(g) The aforesaid three Amendment Acts are not ultra vires
the Constitution.
(h) The doctrine of "prospective overruling" cannot apply to

unconstitutional statutes in view of article 13(2) of the
Constitution.60
It is noticed that the minority of five Judges in Golak Math , all the
five Judges in Sankari Prasad and the majority of three Judges in
Sajjan Singh have differed from the view taken by the majority of six
Judges in Golak Math and the minority of two Judges in Sajjan Singh.61
Thus the total number of Judges in the above three cases who
have favoured the view contained in the minority judgment is twelve as
against the total number of seven Judges favouring the view contained
in the majority judgment in Golak Math .
Be that as it may, the judgment given by the majority of
six Judges of the Full Court consisting of eleven Judges in Golak Math
prevails over that given by a minority of five Judges. In view
of article 141 the law declared by the Supreme Court is binding
on all courts within the territory of India. However, this obviously
refers to courts other than the Supreme Court. There is nothing
in the Constitution which prevents the Supreme Court from
departing from its previous decisions if it is satisfied of their error
and their baneful effect on the general interests of the public.62 In
view thereof the majority judgment should be treated as holding the
field, until it is set aside or modified by another Full Court consisting
of eleven Judges of the Supreme Court.
The result of the majority judgment of the Supreme Court
is that the above three Amendment Acts and any action taken in
pursuance thereof are valid and continue to be valid, even though they
take away or abridge the rights conferred by Part III.62a Any law
60. Sec Id. at 1675, 1676, 1681, 1683 and 1684 (per Wanchoo, J.).
61. Wanchoo, J. (as he then was) who delivered the leading minority judgment
in Golak Nath was one of the majority in Sajjan Singh. Hidayatullah, J., who delivered
a separate judgment concurring with the Chief Justice in Golak Nath was one of the
minority in Sajjan Singh.
62. Bengal Immunity Co. Ltd. v. State of Bihar, [1955] 2 S.C.R. 603 at 628.
62a. This would equally apply to the Constitution (Sixteenth Amendment) Act,
1963.

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hereafter enacted by Parliament or a State Legislature in pursu

of the powers available under the said Amendment Acts wo
also valid and cannot be challenged as violating the fundam
rights. Likewise sixty-four Acts and Regulations included i
ninth schedule to the Constitution and any action taken in pur
thereof are also valid and continue to be valid and they can
challenged as violating fundamental rights conferred by the said
As from February 27, 1967 (the date of the judgment) P

ment would not be competent to amend the Constitution or to
any law in pursuance of such amendment, if the amendment t
away or abridges any of the fundamental rights. It is not th
and every amendment of Part III is not permissible as from th
date. Only the amendments which take away or abridge the
fundamental rights cannot be made by Parliament from the said date.
There seems to be no objection to the amendment of Part III, if such
amendment confers new rights, {e.g., by including in this Part
some of the directive principles of State policy contained in Part IV),
or adds to or enlarges any of the rights conferred by that Part III.63 In
fact any amendment of Part III can be made so long as it does not
take away or abridge any of the rights conferred by that Part. Subject
to this qualification, an amendment adapting Part III to changing
social circumstances and changing social needs with a view to achieving
the socio-economic development of the country is permissible and the
majority judgment does not stand in the way of such amendment.
The history of the constitutional amendments regarding funda-

mental rights shows that these amendments became necessary for the
purpose of giving effect to the directive principles of State policy
when these principles came in conflict with the fundamental rights
conferred by Part III as interpreted by the Supreme Court.
In view of the majority judgment it would not be now possible to
amend the Constitution in the event of any conflict between the
provisions of Part III and Part IV in so far as such amendments take
away or abridge any of the rights conferred by Part III. This would,
it is apprehended, ultimately affect the social and economic development
of the country and the achievement of the socialistic pattern of society
which our Constitution envisages. The impediment on the right of the
Legislature, whether Parliament or a State Legislature, or on the right of
the executive, whether the Central Government or a State Government
arisen in view of the majority judgment requires to be removed by
adopting appropriate remedial measures in this behalf as early as
possible.
63. In the words of Hidayatullah, J., " It is always open to better Fundamental
Rights." Golak Nath at 1699.

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This becomes all the more imperative in view of article

imposes a duty on the State to apply the directive prin
making laws.64
When we recall the total content of the three Amendmen
the following inference by Mr. Chief Justice Subba Rao in G
appears to us to be oversimplified :
all the Directive Principles of State policy can reasonably be enforced w
taking away or abridging the fundamental rights.65
B. Some Problems
We will now consider some of the basic issues emerging as a

result of the Golak Nath decision. These centre on the nature of
fundamental rights in our Indian Constitution, the locus of amending
power in the Constitution, the meaning of the term "law" in article 13(2)
and the appropriateness of the employment of the technique of prospec-
tive overruling with special reference to the said article.
(i) Nature of Fundamental Rights
It is significant to note that some written constitutions expressly
contain a declaration that certain fundamental human rights conferred
on the people shall be "eternal and inviolate."66 The f ramers of our
Constitution must be deemed to be aware of these provisions when they
framed the Constitution. When they have taken meticulous care to
exclude laws made by Parliament under certain articles,67 they could
have if they so intended, likewise excluded fundamental rights
conferred by Part III from the purview of that article by adding
thereto a proviso to that effect.
The absence of any such provision in the Constitution leads one to
an irresistible inference that fundamental rights are not treated by the
Constitution-makers as "eternal and inviolate" and are not given any
"transcendental position under our Constitution" as considered by Mr.
Chief Justice Subba Rao, in Golak Nath.68 Further the theory of
The provisions contained in this Part shall not be enforceable by any court,
but the principles therein laid down are nevertheless fundamental in the
governance of the country and it shall be the duty of the State to apply these
principles in making laws.
66. E.g., see article 11 of the Constitution of Japan. Likewise, article V of the
Constitution of the United States of America provides that no amendment of the
Constitution shall be made which deprives any State without its consent "of its equal
suffrage in the Senate." See infra note 88.
67. E.g., laws made under articles 2, 3, 4(1), 169(1) and 239A(2) (see for the text
of these articles supra notes 11, 12, and 13 respectively), and paragraph 7 of the fifth
schedule and paragraph 21 of the sixth schedule of the Constitution are excluded from
the purview of article 368.

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inviolability of fundamental rights loses ground in view of the spec

provision contained in clause ( e ) of the proviso to article 368 empoweri
Parliament to make any change in the provisions of this article.69
follows that even assuming that the power to take away or abridge
fundamental rights conferred by Part III is not included in Part X
of the Constitution (containing article 368), it is open to Parliament
acquire such power by suitably amending the said article for t
purpose.70
Our Constitution-makers have, on the pattern of the Constituti
of the United States, incorporated certain fundamental rights in t
Constitution and have made them immune from interference by l
made by the State. When article 368 provides for "an amendm
of this Constitution,"71 it means that each and every provision of t
Constitution, including Part III thereof and a fortiori article 1
contained in that Part can be amended by following the procedure l
down in the amending article.72 Thus fundamental rights conferr
by Part III are amenable to amendment.
However, as Part III is not included in the "entrenched"
provisions contained in the proviso to article 368, the question arises
whether an amendment of the said Part can be effected by merely
following the procedure laid down in the substantive part of the article
and without any ratification by not less than one-half of the State
Legislatures as required by the said proviso. In view of the importance
of the fundamental rights it is really difficult to conceive that these
rights can be amended merely by following the procedure laid down in
the substantive part of the article, whereas the provisions contained in
the proviso thereto, some of which are definitely not so vital as Part III,
can be amended by not only following the prescribed procedure but also
by having ratification by not less than one-half of the State Legislatures.
The position is no doubt anomalous and requires rectification by an
amendment of article 368.
Finally it is true that articles 13(2) and 368 are broadly worded
and may come in conflict with each other. However, in view of the
considerations referred to above and the principles of the constitutional
law applicable to countries on which our Constitution is based, it would
69. Sec supra note 10.
70. Saj jan Singh at 955.
71. In connection with use of the expression "an amendment of this Constitution
at the commencement of article 368 it is true that Constitutions of some other
conntries use firmer language regarding constitutional amendments. For example,
section 46 of the Constitution of Eire uses the expression "any provision of this Consti-
tution" and section 29(4) of the Ceylon (Constitution) Order in Council, 1946, uses the
expression "any of the provisions of this Order." However, this language seems to
have been used by way of clarification and it cannot be inferred therefrom that funda-
mental rights conferred by Parts III are unalterable. When article 368 is amended it
is suggested that the language of the article may clearly bring out ihis point too.
72. This is no doubt subject to certain amendments which can be effected by a
simple majority as observed above, pages 477 to 479 supra .

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be legitimate to say that the former article should be rea

and controlled by the latter. It may thus be inferred tha
is competent to take away or abridge fundamental rights c
Part III. In Sankari Prasad and Sajjan Singh the Supreme
to the same conclusion by relying on the rule of "harmonio
tion," which aims at resolving the contradiction when the p
a statute are prima facie contradictory to each other.
In Sajjan Singh Mr. Chief Justice Gajendragadkar (as he
suggested that :
Parliament may consider whether it would not be expedient and reso
include the provisions of Part III in the proviso to article 368.78
Now that the Golak Math majority has held that Part
amended so as to take away or abridge the rights conferred
is open to Parliament to remove the difficulty thus caused
article 368 so as to include the provisions of Part III a
"entrenched" provisions of that article.74 To further stre
safeguards which the fundamental rights deserve, the pro
amendment of Part III taking away or abridging fundame
may be made more stringent and rigid by requiring ratif
Bill relating to such amendment by Legislatures of not le
thirds of the States instead of one-half as presently requir
of the "entrenched" provisions.
(ii) The Locus of Amending Power
In Golak Math Mr. Chief Justice Subba Rao expressed
that article 368
assumes the power to amend found elsewhere and says that it shall be
exercised in the manner laid down therein.75
It is difficult to accept this view in the light of some features of

Part XX which contains the amending article. First, the heading of this
special Part (namely, "Amendment of the Constitution") as well as the
substantive provisions contained in article 368 show that the power to
amend the Constitution and also the procedure thereof is contained in
the article itself. This view gains support from clause {e) of the
proviso to the article which provides for an amendment seeking to make
any change in "the provisions of this article."76 Thus article 368
includes within its ambit the power to amend itself and can provide a
similar power to amend the Constitution as may be deemed fit. Secondly,
73. Sajjan Singh at 956.

74. Though, speaking theoretically, it is possible to include only some of the
rights conferred by Part III e.g., right to property conferred by articles 31, 31 A and
31B in the "entrenched" provisions of article 368 and to treat other rights conferred by
that part as "eternal and inviolate," it is not desirable from the practical point of view
to make any such distinction between rights conferred by the said Part. All the
provisions of Part III may therefore be included in the proviso to article 368.

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when the substantive part of the article provides that " the Constit
shall stand amended11 in accordance with the terms of the Bill" it
postulates that the power to amend the Constitution is contained in the
article itself and can be exercised by following the procedure laid down
therein. Once this procedure is duly followed the Constitution is
automatically amended and nothing further is required to be done for
the purpose.
Finally, it is true that the marginal note to article 368 reads
"Procedure for Amendment of the Constitution." However, when the
heading of Part XX is "Amendment of the Constitution" - and not
"Procedure for amendment of the Constitution" - and the substantive
part of the article contains the power to amend the Constitution, the
marginal note to the article cannot affect the meaning of the plain words
used in the article itself.
The headings prefixed to sections or sets of sections in modern

statutes are regarded as preambles to those sections.78 Such headings
are not mere marginal notes, but the sections in the group to which
they belong must be read in connection with them and interpreted in
their light.79 A heading is to be regarded as giving the key to the
interpretation of the clauses ranged under it, unless the wording is
inconsistent with such interpretation.80 Thus a heading prefixed to
sections is recognized as an aid to construction of those sections.
It is well settled that marginal notes to the sections of an Act of
Parliament cannot be referred to for the purpose of construing the
Act.81 If the sections by themselves make the meaning of the words
used by the Legislature plain and explicit, marginal notes cannot be
invoked for the purpose of adding to, substracting, or altering the
words used by the legislature, but when the words are ambiguous, then
only marginal note may be looked at in order to understand the drift of
the section.82 Thus marginal notes to sections are not ordinarily
treated as an aid to their construction except in the case of doubt.
When the words used in article 368 are not ambiguous, it is not proper
to look at the marginal note to the article to find out whether .the
power to amend the Constitution is contained in the article or not.
It appears from the above that article 368 contains both the
power and procedure for the amendment of the Constitution contrary
to the views of Mr. Chief Justice Subba Rao, here under discussion.823
However, to counter this latter view it is open to Parliament to
amend article 368 including the marginal note thereto, so as to clearly
77. Emphasis added.
78. Maxwell on Interpretation of Statutes, 48 (11th edn. Ray. et. al. ed. 1962).
79. Inglis v. Robertson , [1898] A.C. 616 at 630.
80. Qualter , Hall 6- Co. v. Board of Trade, (1961) 2 All E.L.R. 389 at 392.
81. Balraj Kunwar v. Rao Jagatpal Singh, (1903-04) 31 I.A. 132 at 142 (P.C.).
82. State of Bombay v. Heman Santi al, A.I.R. 1952 Bom. 16 at 24-25.
82a. Golak Nath at 1669.

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specify that the article contains the power to amend t

in addition to the procedure for such amendment.
( iii) The Meaning of "Law" in Article 13(2)
"Law" in general includes law made in exercise of th
legislative power as well as law made in exercise of t
power. Constitutional law includes all rules which direct
affect the distribution or the exercise of the sovereign
State.83 The Constitution is a set of laws and rules
machinery of the government of a State and defining a
the relations between different institutions and areas of Government.84
Constitutional law is mainly concerned with the creation of three pri-
mary organs of the State, namely, the legislature, the executive and
the judiciary, the distribution of powers and functions amongst them
and the definition of their mutual relations. Jurisdiction, powers and
authority of these organs are defined and circumscribed by the limita-
tions imposed by the Constitution. A federal Constitution, by its very
nature, consists of checks and balances regarding the functions of one
organ vis-a-vis the other two organs of the State.85 Constitution is the
foundation on the basis of which all the statutes are required to be
framed by the Legislature, enforced by the executive and tested by the
judiciary. It is the supreme authority of the courts to interpret the
Constitution and their duty to invalidate action violative of the
Constitution.
Articles 107 to 111 included in Chapter II of Part V under the

heading "Parliament" contain legislative procedure for enacting a law
by Parliament. Likewise, articles 196 to 201 included in chapter III
of Part VI under the heading "the State Legislature" contain legisla-
tive procedure for enacting a law by the State Legislature. On the
other hand article 368 included in Part XX under the heading
"Amendment of the Constitution" contains the power as well as the
procedure for amending the Constitution. A Bill passed by Parliament
or a State Legislature by following the legislative procedure laid down
in articles 107 to 111 or articles 196 to 201 becomes a law on receiving
the assent of the President or the Governor, as the case may be.
However, such a law can be tested in a court of law on various
grounds including the ground of legislative competency or inconsistency
with the provisions of Part III or any other provisions of the
Constitution.
On the other hand when a Bill for amendment of the Constitu-

tion is passed by following the procedure laid down in article 368,
the Constitution stands automatically amended by virtue of that
83. Dicey, Introduction to the Study of the Law of the Constitution 23 (10th edn.
1959).
84. Pylee, Constitutional Government in India 3 (1965).
85. State of West Bengal v. Union of India, [1964] 1 S.G.R. 371 at 397.

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article itself without any additional formalities.86 Any amendment

made by Parliament in exercise of the constituent power cannot
challenged in a court on the ground of its inconsistency with t
provisions of Part III or otherwise, once the amendment is duly ma
in conformity with the provisions of the said article.
It will thus be seen that the framers of our Constitution treated
amendment of the Constitution, made pursuant to article 368, as
quite separate and distinct from the laws made by Parliament or
a State Legislature by following the ordinary legislative procedure laid
down in articles 107 to 1 1 1 or articles 196 to 201 of the Censtitution,
as the case may be.86a An amendment of the Constitution made by
Parliament under article 368 is in exercise of the constituent power in
contradistinction with a law made in exercise of the ordinary legisla-
tive power and is not therefore a "law" within the meaning of
article 13 (3) (a). It follows that an amendment so made is not
subject to the provisions of article 13(2) of the Constitution. In this
connection it is significant to note that the word "law" nowhere finds
place in article 368. It is therefore difficult to say that an amendment
of the Constitution under article 368 is "law" within the meaning of
article 13(2) as held by the majority judgment in Golak Nath81
It is noteworthy that in the United States a constitutional amend-
ment is an exercise for the sovereign will of the people88 whereas in
India the power for the purpose is vested in Parliament, the same
body exercising the ordinary "legislative power," to be exercised by
substantially following the same procedure as for an ordinary law, no
doubt by obtaining special majority. This is subject to the qualifica-
tion that in respect of matters covered by "entrenched" provisions of
article 368 State Legislatures have also some voice in the matter.
Subject to this limitation , when both the "constituent power" and the
"legislative power" are vested in one and the same body, namely,
86. This is clear from the expression "the Constitution shall stand amended in
accordance with the terms of the Bill" occurring in the substantive part of article 368.
See also Oldham Corporation v. Bank of England , [1904] 2 Ch. 716.
86a. Contrast section 29 of the Ceylon (Constitution) Order in Council, 1946,
appearing under the heading "Legislative Powers and Procedure." See Jennings, The
Constitution of Ceylon 176 (1949). In Bribery Commissioners v. Ranasinghe , (1965) A.C.
172, the Privy Council drew a distinction between "the ordinary legislative procedure"
for making a law under the Constitution and "the special legislative procedure" for
amendment of the Constitution.
87. The above discussion shows that the exercise of "legislative power" results in
the making of "law", whereas the exercise of "constituent power" results in amendment
of the Constitution.
88. Cf. Article V of the Constitution of the United States which reads :
The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application of the
Legislatures of two thirds of the several States, shall call a Convention for
proposing Amendments, which, in either Case, shall be valid to all Intents
and Purposes, as Part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths thereof,
as the one or tne other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year one
thousand eight hundred and eight shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article; and that no State,
without its consent, shall be deprived of its equal Suffrage in the Senate.

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i 967] AMENDMENT OF FUNDAMENTAL RIGHTS 499
Parliament, the distinction between these two powers becom

Having regard to the wide language used in article 13(2) co
the guarantee to move the Supreme Court for enforcemen
mental rights conferred by article 32 this argument appe
facie attractive, but on careful consideration it is felt
view taken by the Supreme Court in Sankari Prasad ,89 is
appropriate view.
In view of the considerations referred to above article 13(2)
must be read subject to the provisions of article 368 and hence "law"
as referred to in the former article does not include constitutional
law, i.e., the law amending the Constitution. To overcome the
difficulty arisen in the matter in view of the majority judgment of the
Supreme Court in Golak Nath it is open to Parliament to amend
article 368 expressly providing that an amendment of the Constitution
under the said article shall be in exercise of the constituent power of
Parliament and that such amendment shall not be deemed to be "law"
within the meaning of article 13(2) of the Constitution.
(iv) Doctrine of Prospective Overruling and Article 13(2)
As we have seen the Golak Nath majority held that the Constitu-
tion (First Amendment) Act, 1951, the Constitution (Fourth
Amendment) Act, 1955 and the Constitution (Seventeenth Amendment)
Act, 1964, abridge the scope of the fundamental rights and are therefore
void under article 13(2) of the Constitution.8911 However, on the appli-
cation of the doctrine of prospective overruling the majority judgment
held that the decision of the Court will have only prospective operation
and hence the abovementioned three Amendment Acts will continue to
be valid.90
The doctrine of prospective overruling is well-known to American

jurisprudence and has been increasingly employed by the American
Courts over the last thirty years. Till the Golak Nath majority invoked
the said doctrine it was considered to be virtually unknown outside the
United States. (The doctrine is alien to English jurisprudence.) By
"prospective overruling" is meant the overruling of a well-established
precedent limited to future situations, and excluding application to
situations which have arisen before the decision and are therefore
presumed to be governed by reliance on the overruled principle. In
Linkletter v. Walker 91 the Supreme Court of the United States held that
the Constitution neither prohibits nor requires retrospective effect and
hence it was for the Court to decide having regard to all the relevant
89. Sec supra note 35.
89a. See page 490 supra.
90. The doctrine of prospective overruling was applied by five Judges, namely,
Subba Rao, G.J., and other four Judges concurring with him, whereas Hidayatullah, J.,
relied on the doctrine of acquiescence.
91. 381 U.S. 618 (1965).

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500 3 O URN AL OF THE INDIAN LAW INSTITUTE [Vol. 9 : 475
considerations whether a decision overruling a previous principle should

be applied retrospectively or not.92
Prospective overruling is clearly not compatible with the
Blackstonian theory that courts are not to 4 'pronounce a new rule, but to
maintain and expound the old one."93 The doctrine implies a clear
admission that courts do make new law, and the very posing of the
question whether the new rule should be applied retrospectively or only
prospectively indicates awareness of its legislative aspects.94 It has
been pointed out that the doctrine of prospective overruling, while a
welcome acknowledgement of the law-making function of courts, opens
up as many difficulties as it solves and hence it must remain confined
to relatively few situations of exceptional importance.95 The doctrine
has not escaped criticism by high judicial authorities in the United
States.96
When prospective overruling clearly implies judicial legislation,

this is not a function which our Constitution assigns to any court, not
even the Supreme Court. The function of making laws has been
entrusted to the elected representatives of the people and the function
of the courts is to interpret those laws and not to act as the third or
revising chamber.97
Whatever might be the position in the United States, so far as
our country is concerned the matter should be treated as governed by
article 13(2) of the Constitution. This article not only prohibits the
State from making any law which takes away or abridges the rights
conferred by Part III, but also provides that any law made in
contravention of this article shall, to the extent of the contravention,
92. I n Linkletter v . Walker , supra note 91, the Court decided that the rule laid
down in Mapp v. Ohio , 367 U.S. 643 (1961), namely, that evidence illegally seized is
inadmissible in a state criminal trial, should not be made retrospective on the ground
that the said rule would tax the administration of justice to the utmost and that to do so
would result in a number of cases requiring to be re-heard.
93. Blackstone, Commentaries , 69 (1809) quoted by Subba Rao, C.J. in Golak Nath
at 1666.
94. For an interesting analysis of Linkletter, supra note 91, see Mishkin, "The
Supreme Court 1964 - Foreword : The High Court, the Great Writ, and the Due
Process of Time and Law" 79 Harv. L. Rev. 56 (1965); see also Friedmann, "Limits of
Judicial Lawmaking and Prospective Overruling" 29 Mod. L. Rev. 593 at 602 (1966).
95. See Mishkin, op. cit. at 61; see also for an excellent summary and analysis of
the subject Note, "Prospective Overruling and Rectroactive Application in The Federal
Courts," 71 Yale L. J. 907 (1962) and the materials there cited.
96. Justice Oliver Wendell Holmes observed :
I know of no authority in this Court to say that in general State decisions
shall make law only for the future. Judicial decisions have had retrospective
operation for near a thousand years.
Kuhn v. Fairmont Coal Company , 215 U.S. 349 at 371-72 (1909).
97. Fram Nusserwanji v. State of Bombay , A.I.R. 1951 Bom. 210 approved in
appeal by the Supreme Court in State of Bombay and Another v. F. N. Balsar a [1951]
S.C.R. 682.

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be void. In this connection it is significant to note that t

Constitution of the United States contains several prohibitions on
governmental actions, it does not contain any provision corresponding
to the said article.98
The precise scope and effect of article 13(2) have come up for
discussion in our courts on more than one occasion. The classical
statement of Professor Cooley" that
a statute void for unconstitutionality is dead and cannot be vitalised by a
subsequent amendment of the Constitution removing the constitutional
objection but must be re-enacted."
has been cited with approval by Mr. Justice Mukherjea (as he

was) in Saghir Ahmed v. The State of U.P.100 Further once a law
been struck down as unconstitutional by the Supreme Court, no n
can be taken of it by any court, because after it is declared as
unconstitutional it is no longer law and is null and void.101
The doctrine of eclipse,102 which has some semblance, if any, to the
American doctrine of prospective overruling, has been adopted by the
Supreme Court in some of the earlier cases. In Bhikaji Narain v. State
of Ař.P.103, Mr. Chief Justice Das (as he then was) held that a law,
whether pre-Constitution or post-Constitution, violating fundamental
rights was not wholly void but remained in an eclipsed condition as
against citizens, and continued in force as regards rights and liabilities
accruing prior to the commencement of the Constitution, and also against
non-citizens. However, a different view has been taken in subsequent
cases of Deep Chand v. State of Uttar Pradesh 104 and Mahendra Lai v. State
of U.P.105 In the former case, Mr. Justice Subba Rao, (as he then
was), speaking for the majority observed with reference to clause (2) of
article 13 :
A plain reading of the clause indicates, without any reasonable doubt,

that the prohibition goes to the root of the matter and limits the State's power
to make law; the law made in spite of the prohibition is a still-born law.106
In Mahendra LallÇíl the Supreme Court took the view that the law made
in contravention of the prohibition contained in article 13(2) is a
98. In the words of Mr. Justice Hidayatullah,
there is no provision like Article 13(2) under which 'laws' abridging or taking
away Fundamental Rights can be declared void.
Golak Nath at 1703. Section 29(3) of the Ceylon (Constitution) Order in Council, 1946
may be compared with article 18(2) of the Indian Constitution.
99. 1 Cooley, A Treatise on the Constitutional Limitations which Rest upon the
Legislative Power of the States of American Union 384 (8th ed. 1927).
100. [1955] 1 S.C.R. 707 at 728.
101. Behram Khurshed Pesikaka v. The State of Bombay, [ 1955] 1 S.C.R. 613 at
655.
102. See, generally, Seervai, Constitutional Law of India 161-172 (1967).
103. [1955] 2 S.C.R. 589.
104. [1959] Supp. (2) S.C.R. 8.
105. [1963] Supp. (1) S.C.R. 912.
106. Deep Chand v. State of Uttar Pradesh <S- Others , [1959] Supp. (2) S.C.R. 8
at 21.
107. Supra note 105.

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502 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 i 475
still-born law either wholly or partially depending upon the extent of th

contravention and accordingly held that such a law is dead from t
beginning and there can be no question of its revival under the doct
of eclipse.108 Relying on the last two decisions the majority in Sh
Rao v. Pondicherry 108a (Mr. Chief Justice Subba Rao being one of
Judges in majority) held that when a statute is void ab initio and st
born, it cannot be revived or resuscitated by another statute amending i
It may be inferred from the above that an unconstitutiona
statute is
not a law; it confers no rights; it imposes no duties; it affords no protection; it
creates no office; it is in legal contemplation as inoperative as though it had
never been passed.109
When on the application of the doctrine of prospective overruling

majority judgment in Golak Math held that the three Amendment
Acts continue to be valid even though they abridge rights conferred
by Part III, that holding has the effect of adding a proviso to the provi-
sions of article 13(2) or carving out an exception to the said provisions
with a view to saving the impugned Acts. It is felt that the application
of the doctrine of prospective overruling in the present case virtually
amounts to an amendment of the Constitution which is not the function
of the Supreme Court. Further this doctrine cannot be sustained in
India in the light of the oath or affirmation taken by the Judges of
the Supreme Court to bear allegience to the Constitution of India "as
by law established."110 When a law including an amendment of the
Constitution is in the view of the Judges of the Supreme Court
unconstitutional, then it is incumbent on them to give effect to that
view, irrespective of the consequences ensuing therefrom.
There can be no doubt that if Parliament in exercise of its
constituent power under article 368 amended the Constitution validat
ing the aforesaid three Amendment Acts, the Supreme Court would i
the light of the majority in Golak Math have struck down suc
amendment as unconstitutional. The result of the application of the
doctrine of prospective overruling would be that Parliament, th
supreme legislative authority in the country, sovereign in its ow
sphere, would not be competent to amend the Constitution takin
away or abridging the rights conferred by Part III, but the Suprem
Court whose primary function is to declare the law would be compete
to do so. The power to amend the Constitution would be available to
the Supreme Court though it is denied to Parliament. Such a conclusio
is difficult to accept and the issue requires reconsideration by th
Supreme Court.
108. Id. at 931. It is felt that in view of conflicting judicial views an authorita
tive ruling from the Supreme Court is called for in the matter.
108a. [1967] 2 S.C.R. 650.
109. Norton v. Shelby County , 118 U.S. 425 at 442 (1885).
110. The form of the oath or affirmation is given in the third schedule to the
Constitution.

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In view of the above it is felt that having regard to the

of article 13(2) of the Constitution the doctrine of prospec
ruling has no application in India in respect of an uncon
statute, including an amendment of the Constitution.
V. Counter Golak Math Strategies
To overcome the difficulty caused by the majority judgment

the Supreme Court in Golak Math five courses may be considered
under :
{A) to request the Supreme Court to reconsider its majorit

judgment by raising the same issue before it in an
appropriate case ;
( B ) to invoke the Supreme Court's advisory jurisdiction b
making a Presidential reference under article 143(1 ) of
the Constitution ;
(C) to enact a law under article 248 and entry 97 of th
Union List for summoning another Constituent Assemb
thereafter to ask that body to amend the Constitution;
( D ) to make a referendum to the electorate as to whether
fundamental rights conferred by Part III of the Consti
tution are capable of amendment ;
( E ) to amend article 368 clarifying that Parliament
power to amend Part III of the Constitution.
The pros and cons of the above courses are briefly dealt with bel
A. Relitigation
As regards the first course it is significant to note that the co

ordinarily follow the doctrine of stare decisis and are slow to doub
correctness of previous decisions or to depart from them unless co
derations of a substantial or compelling character make it absolu
essential that the questions already decided by them should
reopened.111 Though the doctrine of stare decisis blocks the overr
of earlier decisions, it may legitimately be presumed that regard
the matters relating to fundamental rights the Supreme Court w
not be unwilling to review its earlier decisions in the interests of p
good. In this connection we may recall the observations of Mr. C
Justice Gajendragadkar (as he then was), in Saj jan Singh that
The doctrine of stare decisis may not strictly apply in this context and no one
can dispute the position that the said doctrine should not be permitted to
perpetuate erroneous decisions pronounced by this Court to the detriment of
general welfare.112
111. There have been instances in the past where the Supreme Court has over
its previous decisions e.g., sec Bengal Immunity Co. v. State of Bihar , [1955] 2 S.C.
overruling its earlier decision in the State of Bombay v. United Motor (India) Ltd.,
S.C.R. 1069; and Smt. Ujjam Bai v. State of Uttar Pradesh, [1963] 1 S.C.R
overruling its earlier decision in Kailash Nath v. State of U.P., A.I.R. 1957 S.C. 790
112. Saj jan Singh at 948.

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As regards the review of the majority judgment of the Supre

Court in Golak Nath it is considered that there are no compell
reasons or circumstances to show that the question already decided
the Supreme Court should be reopened with a view to persuade
Supreme Court to reconsider its decision given on February 27, 19
In the absence of any such reasons or circumstances it is quite
unlikely that an application made to the Supreme Court at this sta
for reconsideration of its earlier decision would yield any fruitful resul
and that the Supreme Court will revise its decision, more so when
has been given so recently by the Full Court consisting of ele
Judges. Any application for reconsideration of the decision w
obviously have to be made before the Full Court only.113 Bef
the Supreme Court may be persuaded to revise its majority judgm
there must be proper material available to satisfy the Court w
a fair amount of unanimity or with a fairly large majority amongst
members that such revision is really justified, requiring on me
review of the earlier decision. Until the rigour of the majorit
judgment is reduced or softened by adoption of remedial meas
mentioned below, it would be imprudent to rush to the Supreme
Court with an application to review its earlier decision. In the
circumstances it is felt that such an application is not likely to succeed
and hence the adoption of this course is not advisable in the matter.
B. Advisory Opinion
The second strategy may be directed at seeking an advisory opinion

of the Supreme Court on a reference made by the President under
article 143(1 ). The jurisdiction exercised by the Supreme Court under
that article is merely advisory and its opinion has not the same
binding force as its decision. An advisory opinion is not a judgment.
In exercise of its powers under article 143(1 ) it is no doubt open to
the President to formulate questions in regard to the validity of
provisions proposed to be included in a bill coming up before the
legislature. It may also be open to him to formulate for the advisory
opinion of the Court questions of constitutional importance and it may
be that the President may on receiving the answers consider, whether
the appropriate Government - Union or State - should be requested to
take any suitable action, whether executive or legislative, in accordance
with the opinion expressed by the Supreme Court.114
However, its opinion under article 143(1 ) would not prevent the
Supreme Court from giving a contrary decision if the validity of the
113. The composition of any such Court would be the same as the Full Court
constituted in Golak Nath except as regards only one Judge who has been appointed in
lieu of the vacancy caused by the resignation of Subba Rao, C.J.
114. In re , Special Reference No. 1 of 1964, [1965] 1 S.C.R. 413 at 433-34.

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amendment of the Constitution made by Parliament in acc

such opinion is challenged in the Court in an appropr
view of this it is very unlikely that the Supreme Court wi
of its advisory jurisdiction under article 143(1) overrule its
Golak Nath given by the Full Court.
In this connection, attention may be invited to the deci
Supreme Court in Pandit M. S. M. Sharma v. Shri Sri Krish
wherein a Full Bench of the Supreme Court consisting of
held by a majority of four to one that except in cases wh
was made under article 194(3) defining powers, privile
Houses of Legislatures, that article is not subject to fundam
conferred by article 19(l). On the other hand in the opini
by the Supreme Court in In re Special Reference No. 1 of 1
Court took the view that article 194(3) is not subject to fu
rights under article 19(l)(a), but is subject to article 21
is a conflict between the decision in Pandit Sharma and the
in the Special Reference . The Supreme Court did not expre
its earlier decision in Pandit Sharma as the question did not
before it and as it perhaps thought it inadvisable to overrule in
its advisory jurisdiction under article 1 43 ( 1 ) an earlier decisi
the Court, though the earlier case was heard by five Judg
Special Reference by seven Judges of the Supreme Court. I
these decisions are not reconcilable on principle.
Further it is clear from the language of article 143(1
reference made under that article the Supreme Court is n
give an opinion on the question referred to it.117 It
appropriate case, refuse to render an advisory opinion if it
that it should not express any opinion having regard to t
placed before it and the questions referred to it.118
In the circumstances it is not advisable to obtain an op
the Supreme Court under article 1 43 ( 1 ) in the manter.
C. A Constituent Assembly ?
Though Mr. Chief Justice Subba Rao and other fo
concurring with him have relied on the residuary power of
115. [1959] Supp. 1 S.G.R. 806. Hereinafter referred to as Pandit S
1 16. [1965] 1 S.G.R. 413.Hereinafter refered to as Special Reference.
117. The use of the word "may" in article 143(1) in contrast wi
"shall" in article 143(2) supports this view.
118. As a matter of fact Zafrulla Khan, J., declined to express any
reference made to the Federal Court under section 2 1 3 of the Government of India
Act, 1935. In re. Levy of Estate Duty , 1944 F.G.R. 317 at 350.
It should be noted here that though it is not obligatory on the Supreme Court to
answer a reference under article 143(1), refusal to make a report containing answers
on the questions would, however, be justified only for sufficient and satisfactory
reasons, e.g., the questions referred being purely of socio-economic or political character
which have no constitutional significance. In re. Special Reference No, 1 of 1964 , [1965]
1 S.G.R. 413 at 434.

14.139.58.155 on Tue, 30 Jan 2024 13:25:21 +00:00
contained in article 248 and entry 97 of the Union List for

summoning another Constituent Assembly for making a new Constitu-
tion or radically amending it, they themselves in the end observe that
We do not express our final opinion on this important question.119
Thus these five Judges have abstained from giving any categorical
reply to the question posed before them. In view thereof observations
made by them in this behalf would be merely in the nature of obiter
dicta. Only Mr. Justice Hidayatullah expressed some categorical
views on the subject when he observed that
Parliament must amend article 368 to convoke another Constituent Assembly,
pass a law under item 97 of the first list of Schedule VII to call a Constituent
Assembly and then that Assembly may be able to abridge or take away the
fundamental rights, if desired.120
It should not therefore, be taken that the view invoking the residuary
power of Parliament can be regarded as the view expressed by the
majority of six Judges in Golak Nath .
The Supreme Court had to take recourse to article 248 and entry
97 of the Union List on the plea that there is no provision elsewhere
in the Constitution providing for the amendment of the Constitution.
Are we to suppose that the f ramers of our Constitution were unaware
of the need of including in the Constitution a provision for its
amendment? This appears to be inconceivable. Our Constitution has
been criticized by several jurists on the ground that it is too lengthy
and contains provisions even for matters which ought to have been left
to be determined by conventions. The Constitution is divided into
twenty-two parts and contains three hundred and ninety-five articles
and nine schedules.121 It has been amended upto now twenty-one times
and extends over three hundred pages, making it probably the longest
in the history of constitutions. Furthermore, the Constituent Assembly,
while distributing legislative powers between Parliament and State
Legislatures, took meticulous care to make an exhaustive enumeration of
legislative subjects by including as many as ninty-seven entries in the
Union List, sixty-six entries in the State List and forty-seven entries
in the Concurrent List. This is illustrative of the thoroughness and
exactitude with which the Constituent Assembly strove to ensuring the
comprehensiveness of Legislative Lists contained in the seventh schedule.
It seems fair to conclude that this provision for amendment of the
Constitution is contained in article 368 itself. Recourse to article 248
and entry 97 of the Union List is therefore not appropriate.
120. Id. at 1705.
121. Originally there were eight schedules, the ninth was added by the fir
amendment of the Constitution.

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The scheme of our Constitution shows that entries in L

Lists are designed to define and delimit the respective areas o
competence of Parliament and State Legislatures. A residuar
cannot travel beyond the scope of the division of legislativ
The sovereign legislative power is divided between differen
The entire legislative field is divided between the Union and
The method of allocation adopted is by an exhaustive enum
subjects. The residuary articles and the residuary entry are
adopted to entrust to the Union any subject omitted by
otherwise.122 The power to amend the Constitution is not
in articles 245 to 255 included in Chapter I of Part XI, u
heading "Distribution of Legislative Powers," but is con
article 368 included in Part XX of the Constitution entitled "Amend-
ment of the Constitution." As discussed above the power to amend
the Constitution is not legislative but constituent and is conferred on
Parliament by article 368. 123
Further the residuary power of Parliament to make laws under
article 248 and article 246(1) as read with entry 97 of the Union List
must be also read along with provisions of article 245. This article,
which deals with the extent of laws made by Parliament and State
Legislatures, commences with the words "subject to the provisions
of this Constitution."124 Accordingly, the residuary power of Parlia-
ment to make laws is obviously to be read subject to the provisions
of article 368 dealing with amendment of the Constitution. Besides,
article 248 confers exclusive power on Parliament to make laws with
respect to any matter not enumerated in the Concurrent List or State
List. Power of Parliament to make amendment to certain provisions
of the Constitution specified in the proviso to article 368 is not the
exclusive power, because such amendment also requires ratification by
not less than one-half of State Legislatures. In other words the power
to amend these provisions is to be exercised jointly by Parliament and
State Legislatures and not by Parliament exclusively.
Finally, article 248 replaces section 104(l) of the Government of
India Act, 1935. This article in effect shows that the residuary
legislative power under the Constitution is conferred on Parliament and
not on State Legislatures. In this connection it is significant that the
said section 104(l) authorized the Governor-General, by public notifi-
cation, to empower either the Dominion Legislature or a Provincial
122. State of West Bengal v. Union of India, [1964] 1 S.C.R. 371 at 459-60.
123. With respect to the "entrenched" provisions, this power is to be exercised
jointly by State Legislatures also.
124. Ind. Const . article 245 :
Subject to the provisions of this Constitution, Parliament may make laws for
the whole or any part of the territory of India, and the Legislature of a State
may make laws for the whole or any part of the State.
No law made by Parliament shall be deemed to be invalid on the ground that
it would have extra-territorial operation.

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Legislature to enact a law with respect to any matter not inclu

the Legislative Lists. It was thus open to the Governor-Gen
empower a Provincial Legislature to exercise the residuary legis
power, if he so desired. Likewise, if the residuary legislative p
available under article 248 were given to State Legislatures and
Parliament, it would follow from the majority judgment in Gola
that State Legislatures could make a law convening a Consti
Assembly and such an Assembly could abridge or take away
fundamental rights conferred by Part III. Such a result would a
obviously quite strange.
In view of the above it is felt that article 248 and entry 97 o
Union List do not give any power to Parliament to summon an
Constituent Assembly to amend the Constitution.
If Parliament could enact a law under its residuary legis
power convening a Constituent Assembly and if such Const
Assembly can abridge or take away the fundamental rights
conceivable that such a law can be enacted by an ordinary majo
both Houses of Parliament. Assuming that Parliament enacts
law and transforms itself into another Constitutent Assembly, Parlia
functioning as such could amend the Constitution including the
mental rights conferred by Part III or even abrogate these
merely by an ordinary majority of its members. This would obv
nullify the scheme of article 368, which requires a special major
amendment of the Constitution and also ratification by not les
one-half of the State Legislatures in certain cases. The effe
the adoption of this course would be that Parliament can amen
Constitution by an ordinary majority, overriding thereby the safegu
provided by article 368. Obviously the adoption of such a co
would lead to anomalous results and cannot therefore be considered either
prudent or appropriate.
The situation has been further aggravated by the recent decision
of the Supreme Court in Rajasthan State Electricity Board v. Mohan
Lai.125 The Supreme Court held in this case that the expression
"other authorities" occurring in article 12 126 was wide enough to
include within it every authority created by statute and functioning
within the territory of India or under the control of the Government
of India. Under this decision a Constituent Assembly convened by a law
enacted by Parliament for the purpose of amending the Constitution
would come within the definition of "the State" contained in article 12.
Hence in view of the majority judgment in Golak Nath such a Constituent
Assembly cannot make a law taking away or abridging any of the
fundamental rights conferred by Part III.127 The result is that the
majority judgment would still be attracted causing thereby a deadlock.
125. A.I.R. 1967 S.C. 1857
127. On this point, however, Mr. Justice Hidayatullah's views must be rega
as distinct from the majority opinion as he specifically suggested convening
Constituent Assembly. See supra note 120. It is submitted that these views
reensideration.

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A question also arises, if Parliament is not competent

the Constitution taking away or abridging any of the f
rights conferred by Part III, how can a Constituent Assemb
to itself the power which Parliament does not possess
Constitution ? Constituent Assembly convened by law of
would be a creature of statute enacted by Parliament.
formed under the Constitution is not a constituent body as the
Constituent Assembly formed in the year 1946 was, but is a constituted
body, which must bear true allegiance to the Constitution and function
within the limits specified therein. It is anomalous to comprehend
that Parliament, a constituted body, which is not itself competent to
take away or abridge the fundamental rights conferred by Part III,
can by ordinary law create another Constitutent Assembly, a constituent
body, having power to do so. It cannot be gainsaid that a
subordinate body created by Parliament by law, being a delegate of
Parliament, cannot have any higher power or authority than that
possessed by Parliament itself.
It appears from the scheme of the Constitution that the convening
of another Constituent Assembly was not contemplated by the framers
of the Constitution. Assuming for a moment that it is competent to
Parliament by law to convene another Constituent Assembly, it is
difficult to conceive that such a Constituent Assembly can be based on
any wider franchise than Parliament for the time being elected on the
basis of adult franchise by the people. The view expressed in the
majority judgment regarding the convening of another Constituent
Assembly by an ordinary law enacted by Parliament under its residuary
legislative power seems to go against the scheme of the Constitution.
It is difficult to accept the reasoning adopted in this behalf in the
majority judgment. The issue requires reconsideration by the Supreme
Court.
In any case, this course of action does not appear advisable or
tenable.
D. Referendum
Another way out would be to hold a referendum to the electorate
on the issue whether fundamental rights conferred by Part III are
capable of amendment. Unlike the Constitutions of some other
countries (e.g., Switzerland, Australia and Japan) our Constitution does
not contain any express provision regarding referendum on any
particular matter with a view to ascertaining the will of the people.
This is probably intentional on the part of the Constitution-makers in
view of very vast electorate, a major part of which is illiterate and
backward and not in a position to duly understand or appreciate the
implications of a referendum.128 In a developing country, as vast in
128. According to a statement recently made, by the Education Minister in the
House of People the number of illiterates in 1966 was 353. 44 million, almost three-
fourths of the total population of the country.

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size and as populous as India, it is extremely difficult to have effe

public opinion as the guardian of fundamental rights on the ques
of constitutional amendments. In the absence of effective pub
opinion, it would have been really improper if the question of cons
tional amendments were left to the will of the executive or the cap
of the legislative majority. To overcome these difficulties the Constitut
makers in their wisdom deemed it proper to leave the questio
amendment of the Constitution to Parliament itself by a special majori
and by ratification by not less than one-half of State Legislature
certain cases as contemplated by article 368 of the Constitution.
Nor does this course of action seem very feasible. A referend
to about two hundred and fifty million voters,129 would involve a
expenditure in terms of time, money and manpower. There woul
a further question as to whether the referendum process should
availed of whenever the need for abridging the scope of the fund
mental rights arises. Finally, even if this were acceptable, would it
be expecting too much to ask the electorate to appreciate the perple
issues involved in any such amendment, issues on which even
community of jurists and intellegenstia in general may be sha
divided ?
The majority judgment of the Supreme Court has relied on the

analogy of the opinion poll held in Goa, Daman and Diu in pursuance
of the Goa, Daman and Diu (Opinion Poll) Act, 1966 for the purpose
of making a reference to the electorate on the question of amendment of
fundamental rights.130 The above Act was enacted by Parliament in
exercise of its residuary legislative power contained in article 248 and
entry 97 of the Union List for the purpose of ascertaining the wishes of
the electors of Goa as to whether it should be merged in the State of
Maharashtra and the wishes of the electors of Daman and Diu as to
whether they should merge in the State of Gujarat. The Act wa
enacted primarily with a view to eliciting public opinion before
exercising the power of Parliament to make law under article 3. 131
However, as the electors of Gao, Daman and Diu expressed the desire
to have their territories to continue as Union territories, it did not become
necessary for Parliament to enact further legislation. It is thus clear
that the analogy of the opinion poll in Goa, Daman and Diu is no
really apt.
In view of the above it is felt that the a referendum to the
electorate on the question of amendment of the Constitution is not
really feasible.
E. Amendment of the Amending Article
Having regard to various difficulties and anomalies pointed out

above and to the observations made in the dissenting opinions i
129. For the general elections held this year the total number of electors fo
Parliamentary elections came to 249 million and for assembly election 247.1 million
130. GolakNath at 1670.
131. See supra note 1 1 .

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Golak Nath it is suggested that article 368 may be duly am

providing for the following matters :
(i) Parliament shall have the exclusive power to amend a

provision of the Constitution.
(ii) The amendment of the Constitution so made shall b
exercise of the constituent power of Parliament.
(iii) The amendment of the Constitution shall not be dee
to be "law" within the meaning of article 13(2) of
Constitution.
(iv) Provisions of Part III shall be included in the proviso to

article 368.
(v) Any amendment of the Constitution taking away or

abridging the rights conferred by Part III shall require
ratification by the Legislatures of not less than two-thirds
of the States, instead of not less than one-half as required
by the proviso to article 368.
(vi) The provision for presenting the Bill making amendment
of the Constitution to the President for assent may be
omitted.
(vii) The marginal note to the article may be duly amended

so as to clearly bring out that the article deals with not
only the procedure regarding amendment but also the
power to amend the Constitution.
Reasons for amending article 368 broadly on the above lines have
been already explained and need no further elucidation except as regards
the suggestion contained in proposition (vi) above which is briefly
dealt with below.
In connection with the provision in article 368 requiring the assent

of the President to a Bill amending the Constitution the majority
judgment in Golak Nath observed that there was similarity of procedure
for making an ordinary law by Parliament in exercise of its ordinary
legislative power and for amending the Constitution in exercise of its
constituent power and thereby inferred that amendment of the
Constitution cannot be made otherwise than by following the legislative
processš132 It is true that article 1 1 1 included in the group of articles
dealing with "Legislative Procedure" (articles 107 to 111) provides
that when a Bill has been passed by the Houses of Parliament, it shall be
"presented to the President" for his assent. To overcome the difficulty
in this behalf the provision in the article requiring the assent of the
President to the Bill may be omitted. This would go to show that av
Bill amending the Constitution stands on a different footing from an

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512 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol.9 : 475
ordinary law made by Parliament in exercise of its legislative

available under article 246 of the Constitution.183
If in view of the majority judgment Parliament amends article 368,

such an amendment would no doubt be challenged in the courts.
It might be urged that such an amendment would be "law" within
the meaning of article 13(3) and would thus be subject to the provisions
of article 13(2) of the Constitution; if such an amendment takes away
or abridges any of the rights conferred by Part III, it would be void
under the said article. However, this article seems to be included in
the Constitution by way of abundant caution and even without that
article fundamental rights would have the same effect on other laws.
In this connection attention may be invited to the following observations
made by Mr. Chief Justie Kania, in A . K. Gopalan v. The Stale of
Madras ,134 the first important case on fundamental rights, that :
The inclusion of article 13(1) and (2) in the Constitution appears to be a
matter of abundant caution. Even in their absence, if any of the fundamental
rights was infringed by any legislative enactment, the Court has always the
power to declare the enactment, to the extent it transgresses the limits,
invalid...186
Thus when article 13(2) has been included in Part III ex majore
cautela , it should not be treated as coming in the way of amendment of
any of the rights conferred by that Part. In Saj jan Singh
Mr. Justice Hidayatullah sharply reacted to this view by observing
that
far from belittling the importance of art. 13 the learned Chief Justice meant
rather to emphasise the importance and the commanding position of Funda-
mental Rights in that even without art. 13 they would have the same effect on
other laws.186
It is, therefore, not quite clear whether the above observations made
by the Chief Justice were intended to whittle down the effect of
article 13.
Measures and counter-measures envisaged in this paper would

not themselves lead to final results. It is in the larger interests of the
country that having regard to the realities of the situation, the Supreme
Court should be persuaded to accept the view that an amendment of
the Constitution under article 368 taking away or abridging any of
the rights conferred by Part III is not "law" and would not therefore
be void under article 13(2). It is felt that an amendment of article 368
on the lines here suggested would provide a suitable opportunity
for a review of the Golak Nath decision.
133. In this connection the provisions of article 5 of the Constitution of the United
States of America and article 46 of the Constitution of Eire may be noted by way of
analogy.
134. [1950] S.C.R. 88.
135. Id. at 100.
1 36. Saj jan Singh at 96 1 .

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There is, practically an urgent need to do so. In State of

Madhya Pradesh v. Vishnu Prasad Sharma 137 the Supreme Court held
that there can be no successive declarations under section 6 of the
Land Acquisition Act, 1894, in respect of different parcels of land
covered by the same notification under section 4(l). Broadly, the
scheme of the Act is that the Government issues the preliminary
notification whenever land in any locality is needed for any public
purpose.138 After hearing the objections of persons interested in
the land, the Government issues a declaration that the particular land
is needed for a public purpose.139 There is obviously some time lag
between the issue of the preliminary notification under section 4 and
the declaration under section 6. Compensation to be awarded for
land to be acquired is determined having regard to the market value
of the land on the date of the publication of the preliminary
notification under section 4. 140
Thus if in respect of land specified in the preliminary notification

under section 4(l), a declaration is issued under section 6 regarding a
part of the land so notified, the effect of the preliminary notification
gets exhausted in respect of the remaining parts of the land. As and
137. [1966] 3 S.C.R. 557.
138. The Land Acquisition Act, 1894, § 4(1) :
Whenever it appears to the appropriate Government that land in any
locality is needed or is likely to be needed for any public purpose, a notification
to that effect shall be published in the Official Gazette, and the Collector shall
cause public notice of the substance of such notification to be given at
convenient places in the said locality. . . .
139. The Land Acquisition Act, 1894, § 6 (before its amendment by Act 13
of 1967) :
(1) Subject to the provisions of Part VII of this Act, when the appropriate
Government is satisfied, after considering the report, if any, made under sec-
tion 5A, sub-section (2) , that any particular land is needed for a public purpose,
or for a company, a declaration shall be made to that effect under the signature
of a Secretary to such Government or of some officer duly authorised to certify
its orders :
Provided that no such declaration shall be made unless the compensation to be

awarded for such property is to be paid by a Company, or wholly or partly out
of public revenues or some fund controlled or managed by a local authority.
(2) The declaration shall be published in the Official Gazette, and shall state
the district or other territorial division in which the land is situate, the purpose
for which it is needed, its approximate area, and, where a plan shall have been
made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed
for a public purpose or for a Company, as the case may be; and, after making
such declaration, the appropriate Government may acquire, the land in
manner hereinafter appearing.
140. See also, The Land Acquisition Act, 1894, § 23(1):
In determining the amount of compensation to be awarded for land acquired under
this Act, the Court shall take into consideration -
firstly , the market-value of the land at the date of the publication of the notifica-
tion under section 4, sub-section (1);

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when successive declarations under section 6 are proposed to be is

in respect of the remaining parts of the land covered by the
notification under section 4(1), having regard to the needs of
Government from the point of view of public purposes, such declaratio
must be preceded by fresh notifications under section 4(l) in resp
of such parts. In such a case the market value of the remaining p
of the land will have to be determined having regard to the dates
fresh notifications. The virtual effect of the Supreme Court deci
is that Government will have to pay large sums of money by way
further compensation in cases where the market value of the lan
the dates of fresh notifications under section 4(l) has appreciated.
To overcome the difficulty caused by the above decision of th
Supreme Court, Parliament recently enacted the Land Acquisi
(Amendment and Validation) Act, 196 7. 141 Section 6 of the L
Acquisition Act, 1894, as amended by the Amendment Act of
provides that no declaration in respect of any particular land cov
by the preliminary notification under section 4(l) published a
January 20, 1967 shall be made after the expiry of three years fr
the date of such publication. 141a In cases where acquisitions pendin
January 20, 1967 extend beyond the period of three years from t
date of the publication of the preliminary notification under secti
the Amendment Act provides for the payment of simple interest a
rate of six per cent per annum on the market value of the land f
the date of expiry of the said period of three years to the date of tend
of payment of compensation for acquisition of the land.141b Sectio
of the Amendment Act validates certain acquisitions.142
secondly, the damage sustained by the person interested, by reason of the takin
any standing crops or trees which may be on the land at the time of th
Collector's taking possession thereof;
thirdly i the damage (if any) sustained by the person interested at the time of
Collector's taking possession of the land, by reason of severing such lan
from his other land;
fourthly , the damage (if any) sustained by the person interested at the time of
Collector's taking possession of the land by reason of the acquisiti
injuriously affecting his other property, moveable or immovable, in an
other manner or his earnings ;
fifthly , if, in consequence of the acquisition of the land by the Collector
person interested is compelled to change his residence or place of busine
the reasonable expenses (if any) incidental to such change ; and
sixthly , the damage (if any) bona fide resulting from diminution of the profi
the land between the time of the publication of the declaration unde
section 6 and the time of the Collector's taking possession of the land ..
141. This Act replaces the Land Acquisition (Amendment and Validation)
Ordinance, 1967, promulgated by the President on January 20, 1967.
141a. See infra note 149.
141b. See infra note 142.
142. The Land Acquisition (A.mendment and Validation) Act, 1967, § 4:
Notwithstanding any judgment, decree or order of any court to the
contrary -
(a) no acquisition of land made or purporting to have been made under the
principal Act before the commencement of the Land Acquisition (Amendment
and Validation) Ordinance, 1967, and no action taken or thing done (including
any order made, agreement entered into, or notification published) in connec-
tion with such acquisition shall be deemed to be invalid or ever to have become
invalid merely on the ground -

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Relying on its earlier decision in Bela Banerjee 143 the

Court recently held that compensation payable under
is the just equivalent what the owner has been deprived o
the time of acquisition of property. It was further held t
compensation payable for property acquired is illusor
principles prescribed for ascertaining such compensation ar
to the value of the property at or about the time of it
or if the principles are so designed and so arbitrary that
provide for compensation at all, it can be said that the
made the law in fraud of its powers and in such a case
of compensation is justiciable.144 It is noticed that in
(i) that one or more Collectors have performed the functions of
under the principal Act in respect of the land covered by the same n
under sub-section (1) of section 4 of the principal Act;
(ii) that one or more reports have been made under sub-section
section 5A of the principal Act, whether in respect of the entire
different parcels thereof covered, by the same notification under sub-se
of section 4 of the principal Act;
(iii) that one or more declarations have been made under section
principal Act in respect of different parcels of the land covered by
notification under sub-section (1) of section 4 of the principal Act in
of one or more reports under section 5 A thereof;
(b) any acquisition in pursuance of any notification published u
section (1) of section 4 of the principal Act before the commencemen
Land Acquisition (Amendment and Validation) Ordinance, 1967, m
made after such commencement and no such acquisition and no act
or thing done (including any order made, agreement entered into, or
notification published), whether before or after such commencement, in
connection with such acquisition shall be deemed to be invalid merely on the
grounds referred to in clause (a) or any of them.
(2) Notwithstanding anything contained in clause (b) of sub-section (1), no
declaration under section 6 of the principal Act in respect of any land which has
been notified before the commencement of the Land Acquisition (Amendment
and Validation) Ordinance, 1967, under sub-section (1) of section 4 of the
principal Act, shall be made after the expiry of two years from the commence-
ment of the said Ordinance.
(3) Where acquisition of any particular land covered by a notification under
sub-section (1) of section 4 of the principal Act, published before the
commencement of the Land Acquisition (Amendment and Validation)
Ordinance, 1967, is or has been made in pursuance of any declaration under
section 6 of the principal Act, whether made before or after such commence-
ment, and such declaration is or has been made after the expiry of three years
from the date of publication of such notification, there shall be paid simple
interest, calculated at the rate of six per centum per annum on the market
value of such land, as determined under section 23 of the principal Act, from
the date of expiry of the said period of three years to the date of tender of
payment of compensation awarded by the collector for the acquisition of such
land :
Provided that no such interest shall be payable for any period during which
the proceedings for the acquisition of any land were held up on account of stay
or injunction by order of Court :
Provided further that nothing in this sub-section shall apply to the acquisition
of any land where the amount of compensation has been paid to the persons
interested before the commencement of this Act.
143. [1954] S.C.R. 558.
144. Vajravelu Mudaliar v. Special Deputy Collector , [1965] 1 S.C.R. 614, followed
in Union of India v. Metal Corporation of India, [1967] 1 S.C.R. 255 and Union of India
v. Kamalabai Parekh , Civil Appeal No. 1564 of 1966 decided on September 7, 1967, not
yet reported; see also Jeejeebhoy v. Assistant Collector, [1965] 1 S.C.R. 636 and State of
Madras v. Namasivaya Mudaliar, [1964] 6 S.C.R. 936.

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amendment of article 31(2) by the Constitution (Fourth Amendme

Act, 1955, making the issue of compensation non-justiciable th
Supreme Court gave the same meaning to the expression "comp
sation" occurring in that article as was given to it in Bela Banerjee
decided before the said amendment. This whittles down the effect
of the words used at the end of the said article. 144b It is felt that
the conclusion arrived at in this behalf is difficult to accept and hence
the decision in Vajravelu Mudaliar v. Special Deputy Collector 145 needs
reconsideration by the Supreme Court.
It is permissible to a Legislature to fix for valuation of the property
acquired an anterior date (i.e., a date prior to acquisition), having
regard to the relevant circumstances requiring the fixing of such date,
and any such legislation would not be ultra vires article 31(2) so long
as the date so fixed is at or about the time at which the property is
acquired, i.e., within a reasonable proximity of the acquisition of the
property. Question arises whether the fixation of the valuation of the
property acquired on a date three years before the issue of the
declaration under section 6 146 can be said to be "at or about the time
of its acquisition" as contemplated by the Supreme Court. The fixation
of an anterior date for the ascertainment of the value of the property
acquired may not in certain circumstances be regarded as a violation of
the right conferred by article 31(2), but the fixation of such date, which
has no relation to the value of the property acquired, may be, many
years later, cannot but be regarded as arbitrary.147
In view of the above it is apprehended that the fixation of an
anterior date for payment of compensation under section 23 ( 1 )148 as
read with section 6 of the Land Acquisition Act, 1894, as recently
amended,149 may not be regarded by the courts as reasonable in al
144a. See supra note 143.
144b. See supra note 41. According to the Supreme Court if compensation is
inadequate, it cannot be just equivalent (which is the market value) and is not therefore
compensation as contemplated by article 31(2). Though attempts have been made in
subsequent cases, supra note 144, to explain the interpretation favoured by the Court,
it is submitted that one fails to see how such interpretation can be given effect to.
146. This is now the maximum time lag between the date of the preliminary
notification under section 4(1) and the date of declaration for acquisition under section 6
permissible under the Land Acquisition Act, 1894, as recently amended. See infra note
149.
147ś See supra note 143 at 564. In this case the fixation of the anterior date for
payment of compensation involved a period slightly extending over three years and that
was held by the Supreme Court as arbitrary and thus ultra vires article 31(2). In
Jeejeebhoy v. Assistant Collector , supra note 144, the time lag involved a period of a few
months only and that too was held ultra vires article 31(2).
149. The Land Acquisition (Amendment and Validation) Act, 1967, § 3 :
In section 6 of the principal Act, -
(a) in sub-section (1), -

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cases. Further though section 4 of the Amendment Act of

certain acquisitions,150 such validation cannot overcome th
arisen in view of the provisions of article 31(2) as interp
Supreme Court.151 Hence the aforesaid provisions of the Land
Acquisition Act, 1 894, as recently amended, as well as of the Amend-
ment Act of 1967, are liable to be challenged as violating the provisions
of the article 31(2). To avoid any risk of challenge in this behalf it is
open toParliąment to suitably amend article 31(2) after complying with
the provisions of article 368 of the Constitution. However, insofar as
such amendment takes away or abridges the right to property conferred
by article 31(2) the same would not be permissible so long as the
majority judgment of the Supreme Court in Golak Nath holds the field.
The next question pertains to discrimination from the point of
view of article 14 of the Constitution in relation to acquisition of
property under the Land Acquisition Act, 1894. 152 This may be
examined with special reference to acquisitions already completed
before January 20, 1967. Suppose, for example, there are two plots of
land of the same quality and value belonging to two different owners;
the notifications under section 4(1) in respect of both the plots are
issued on the same day, i.e., January 1, 1955. The declaration under
section 6 in respect of the first plot is issued on March 31, 1955,
whereas such declaration in respect of the second plot is issued on
January 1, 1965. In such a case the first owner would get compen-
sation for the acquisition of his plot soon after the date of issue of the
notification under section 4(l), whereas the second owner would get
the same compensation as the first owner got after the lapse of about
ten years from the said date. If the value of the land has appreciated
in the meantime, the second owner would be getting for his plot of
land compensation which would not be the "just equivalent" of what
he has been deprived of at or about the time of acquisition. If it can
(i) after the words "certify its orders" the following shall be inserted,
namely : -
"and different declarations may be made from time to time in respect of
different parcels of any land covered by the same notification under section 4,
sub-section (1), irrespective of whether one report or different reports has or
have been made (wherever required) under section 5A, sub-section (2)" ;
(ii) for the words "Provided that", the following shall be substituted,
namely : -
"Provided that no declaration in respect of any particular land covered by a
notification under section 4, sub-section (1), published after the commence-
ment of the Land Acquisition (Amendment and Validation) Ordinance, 1967,
shall be made after the expiry of three years from the date of such publication:
Provided further that" ;
(b) in sub-section (2), for the words "The declaration", the words "Every
declaration" shall be substituted.
151. The Land Acquisition Act, 1894, is protected as an existing law from
challenge under article 31(2) in view of article 31 (5) (a) of the Constitution, but the
amendments to that Act made by the Amendment Act of 1967 are not so protected and
hence such amendments must steer clear of the provisions of article 31(2). See
Lilauati Bai ▼. State of Bombay , [1957] S.C.R. 721, followed in Babu Barkua Thakur v.
State of Bombay, [1961] 1 S.C.R. 128.
152. The protection available to the Act under article 31 (5) (a) does not extend to
article 14. This point was not raised in Vishnu Prasad Sharma, see supra note 137.

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be shown that declarations were deliberately issued to favour one ow

as against the other, that would amount to discrimination and be
violative of the provisions of article 14 of the Constitution. This w
necessitate the testing of the provisions of the Land Acquisition A
1894, as recently amended, from the point of view of article 14, speciall
in respect of acquisitions already completed.
Decisions of the Supreme Court as explained above would no dou
cause serious difficulties in practice, specially in respect of past acq
tions, necessitating thereby payment of very large sums of money by w
of further compensation in respect of lands already acquired.153 The lon
time lags between the issue of the notification under section 4(l) and
declaration under section 6 have been the subject-matter of severe
criticism by the public as indications of unfairness to the owners of
acquired by the Government. No doubt section 6 of the Land Acqu
tion Act, 1 894, as recently amended, attempts to limit this time la
the maximum of three years. However, it is felt that so far as pas
acquisitions are concerned the situation requires to be regularized
way of maintaining the status quo ante if payments of large sums of mon
by way of further compensation are to be avoided.
To meet the above difficulties in respect of acquisitions of lan
the appropriate course may be to include the provisions of the Ame
ment Act of 1967 in the Ninth Schedule to the Constitution, so
that they can be made immune from challenge under articles 14
and 31(2) of the Constitution.154 The adoption of this course would
have the effect of abridging the fundamental rights conferred by the
said articles and this cannot obviously be done so long as the Golak Math
judgment stands and article 368 is not duly amended broadly on the
lines suggested herein or on some such lines. As the problem raised in
relation to the acquisition of land is of vital importance to the economy
of the country, it cannot be gainsaid that the amendment of article 368
is most essential and calls for a very early action in the matter.150
Further once the majority judgment of the Supreme Court in Golak
Math and the judgment in Vajravelu Mudaliar 156 remain on record for a
a substantial period of time, their effect as judicial precedents becomes
crystallized and rigid, making it all the more difficult to obtain review
of these judgments from the Supreme Court. Hence prudence
requires that amendments of article 368 and the Ninth Schedule to the
Constitution be made as early as possible.157
153. A Committee consisting of members of Parliament and representatives of the

State Governments has been recently appointed by the Government of India to examine
the entire framework of the Land Acquisition Act, 1894. Vide Ministry of Food, Agri-
culture, Community Development and Cooperation (Department of Agriculture)
Resolution No. 6-6/67-Genl. II, dated July 27, 1967, published on page 694 of the
Gazette of India, part I, section 1, dated August 12, 1967. It is hoped that the
Committee will go into all the above issues.
154. It is felt that there is no other effective alternative to meet the difficulties,
bearing in mind the very difficult economic situation of the country prevailing at
present.
155. This is all the more essential as appeals on the issues under consideration are
actually pending before the Supreme Court.
157. A private member's Bill for amendment of article 368 is at present under
consideration before a Joint Committee of both Houses of Parliament.

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VI. Conclusion
From the alternate courses of action considered above in thi

it appears that amendment of article 368 is both desirable an
feasible. Since the other alternatives, and particularly the co
a Constituent Assembly, seem impracticable, so long the G
decision were to hold the field, the only other manner in w
tutional changes could be effected will be through military
revolutionary crisis. This extreme situation will result in a
of the constitutional machinery, necessitating thereby the
of a new Constitution for the country.158
To avoid anomalies or drastic situations of the nature referred to
above there is no real alternative but to have recourse to article 368
for the purpose of effecting amendments to Part III by including these
amendments in the "entrenched" provisions of the article. This is the
only way in which the flexibility of Part III can be achieved so as to
meet the changing social circumstances and the changing needs of the
society with a view to achieving the socio-economic development of the
country.
The purpose of amendment of article 368 is to restore to Parliament
the power to amend Part III taking away or abridging the fundamental
rights enjoyed by it prior to February 27, 1967. Once the power is
restored to Parliament, it should be left to Parliament to decide in its
wisdom as to which provisions of Part III should be amended and, if
so, in what manner. It may legitimately be assumed that parliamentarians
would not ordinarily amend Part III, unless the need to do so is pressing
enough in the larger interests of the country, and "the question about
reasonableness or expediency or desirability of the amendments in question
from a political point of view,"159 may be left to Parliament. Further to
make such amendments more difficult, ratification by not less than two-
thirds of the State Legislatures has been suggested for the purpose in
addition to the special majority required by the substantive part of the
article. It is felt that these safeguards should prove sufficient for the
purpose.
If and when the adoption of the above course is challenged in the

Supreme Court that Court may be induced to form the Full Court and
reconsider its majority judgment in Golak Nath , having due regard to
the provisions of article 368 amended as proposed above. The chances
of persuading the Supreme Court to reconsider its decision are bright,
more so when the majority judgment in Golak Nath is given by six Judges
as against the minority judgment given by five Judges and the amend-
ment of article 368 as proposed above is based on the views expressed
in the majority judgment.
Optimism for reconsideration of the majority judgment in Golak
Nath has increased in view of the very recent decision of the Supreme
158. The question of revolution as an alternative to change of the Constitution has
been considered by Hidayatullah, J., in his separate concurring opinion in Golak Nath at
1697 and 1717. See also observations of Subba Rao, C.J., Id. at 1670.
159. Gajendragadkar, C.J., in Saj jan Singh at 953.

14.139.58.155 on Tue, 30 Jan 2024 13:25:21 +00:00
520 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 9 i 457
Court in Mohd. Taqub, etc. v. State of Jammu & Kashmir.160 Article

of the Constitution empowers the President to suspend by order an
the rights conferred by Part III during the pendency of the Procla
tion of Emergency. Question was raised in the above case whether s
an order can be considered to be a "law" for the purpose of article
and tested thereunder. Applying the principle of harmonious const
tion a Full Bench of the Supreme Court consisting of seven Judges
that an order passed under article 359 cannot be "law" for the purp
of article 13(2), assuming it to be law in its widest sense. Dissenti
from the view taken in Ghulam Sarwar v. Union of India161 the Co
further held that such an order cannot be tested with the aid of
article 13(2) under that very fundamental right the enforcement of
which it suspends.162 For the purpose of article 13(2) an amendment
of the Constitution made under article 368 does not seem to stand in a
position different from an order passed under article 359. On a parity
of reasoning it is felt that such an amendment is not a "law" for the
purpose of article 13(2) and can therefore take away or abridge any of
the rights conferred by Part III. The result is that Sankari Prasad is
correctly decided by the Supreme Court. In view thereof it is
submitted that the majority judgment in Golak Math to the contrary
needs reconsideration.
The advisability of amending article 368 need not be over

emphasized. The absence of any such amendment would raise serious
and complicated problems of constitutional and jurisprudential theory
and would ultimately result in a sharp brake on the national progress.
This should obviously be avoided.
It is in the interest of the country at large that healthy legislative-
judicial relations should be established so as to avoid conflict of legis-
lative-judicial powers conferred on two of the important organs of the
Union, namely, Parliament and the Supreme Court. This is all the more
essential in view of the interests of the society at large in contradistinc-
tion with the interests of individual members of the society. The
problem posed by the majority judgment in Golak Math should therefore
be treated as problem of national importance and should be resolved as
early as possible in the larger interest of the country. This can only
be done if these two organs of the Union act in harmony and co-operation
with each other, so as to run the Government smoothly in accordance
with the provisions of the Constitution.
160. Writ Petitions 109 to 114 of 1967; judgment delivered on November 10,
1967, as yet unreported.
161. [1967] 2 S.G.R. 271.
162. Mr. Chief Justice Wanchoo and five other Judges delivered the main judg-
ment. Mr. Justice Hidayatullah, who was one of the Judges deciding Ghulam Sarwar ,
delivered a separate judgment agreeing with the order proposed in the main judgment,
but reserved his reasons for the same. Regarding Ghulam Sarwar he observes :
The judgment of Subba Rao, C.J., to which I was a party has expressed
itself somewhat unhappily on the point on which it has been overruled in the
judgment just delivered.
However, he seems inclined to dissent from the view taken in Ghulam Sarwar, though he
has made a feeble attempt to explain his position regarding the Court's decision in that
case.

14.139.58.155 on Tue, 30 Jan 2024 13:25:21 +00:00

RS Gae - Amendment of Fundamental Rights

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AMENDMENT OF FUNDAMENTAL RIGHTS

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AMENDMENT OF FUNDAMENTAL RIGHTS

I. Fundamental Rights and Directive Principles

Part III of the Constitution containing articles 12 to 35 deals

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The Constitution provides for three kinds of amendments

4. F . N. Balsar a v. State of Bombay, (1951) Bombay 17 at 37, overruled on

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(iii) amendments which require, in addition to the spec

10. Ind. Const . article 368 :

(c) any of the Lists in the Seventh Schedule, or

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or creation of the Legislative Council in a State;12 laws creating lo

It is significant that articles 4(2), 169(3) and 239A(2), para-

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It follows that the special procedure for amendment of t

C. Amendment by Special Majority and Ratification by

These amendments deal with changes in certain provisions of

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the matter and may effectively delay an amendment for an indefi

In Golak Math v. State of Punjab 21 the validity of the Constitut

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Act, 1955, and the Constitution (Seventeenth Amendment

Article 31 dealing with compulsory acquisition of property as

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any attack for violation of fundamental rights, it was decided to am

The Amendment Act inserted two new articles, namely, article 31 A

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Article 3 IB validated retrospectively thirteen Acts and

In State of West Bengal v. Bela Banerjeez 6 the Supreme Court held

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compensation,38 the Court took the view that "compensation" mean

38. Id. at 564. See also supra note 22.

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that the compensation paid for acquisition in such case

To overcome the difficulty in view of certain decisio

C. The Seventeenth Amendment

The Kerala Agrarian Relations Act, 1961, was struck down by

The attribution by the Supreme Court of a restricted meaning to

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ments.48 The Amendment Act further inserted forty-four mor

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It must be acknowledged that the above three Amendment Acts

54. Cf. Blackshield, "Fundamental Rights" supra note 2, Appendix, at 190-203.

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not be allowed to come in the way of development of the coun

56a. The Constitution is an organic documant meant to serve as a guide to the

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Further in Golak Nath Mr. Justice Hidayatullah expre

IV. GOLAK NATH : A Critique

As noted above, in Golak Nath the validity of the three property

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(c) The power to amend the Constitution is derived from

(b) The power to amend the Constitution is derived from

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(d) "Law" as defined in article 13(3) means only the law