📘 Golak Nath Case Analysis – Article 13(2)
Delhi Law Academy Jaipur presents below for aspirants of RJS, DJS, PCS (J) and other Judicial Services throughout India a summarized version of the Supreme Court judgment in the case of interpreting the Constitutional provisions contained in Article 13(2).
📜 Case Law: Golak Nath v. State of Punjab (1967)
An analysis of the Supreme Court verdict in Golak Nath Case
Article 13(2)
🔵 Question:
- Whether Amendment is a “law” under the meaning of Article 13(2)?
🔵 TOPIC:
Golak Nath v. State of Punjab [1967]
- Parliament could not curtail any of the Fundamental Rights even by way of Amendment of the Constitution
In Golak Nath v. State of Punjab 1967 the Supreme Court overruling its earlier decision in Shankari Prasad and Sajjan Singh, held that Fundamental Rights were non-amendable through the constitutional amending procedure set out in Article 368.
📘 Issues Involved:
(1.) Whether Amendment is a “law” under the meaning of Article 13(2)?
Since 1951, questions have been raised about the scope of the constitutional amending process contained in Article 368. In Shankari Prasad Singh v. Union of India, the argument against the validity of the 1st Amendment was that Article 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights that the word “Law” in Art. 13 would include any law; even a law amending the Constitution and, therefore, the validity of such a law could be judged and scrutinized with the reference to the fundamental rights which it could infringe. Here in this case there was a conflict between Arts. 13 and 368. Adopting the literal meaning of the constitution, the Supreme Court upheld the validity of the 1st Amendment. The Court rejected the contention and limited the scope of Art. 13 by ruling that the word ‘Law’ in Art. 13 would not include within its compass a constitution amending law passed under Art. 368.
There is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Both Article 13 and 368 are widely phrased and conflict in operation with each other. To avoid the conflict, the principle of harmonious construction should be applied.
(2.) Whether Fundamental Rights can be amended or not?
No earthly wisdom can foresee every possible situation which may have to be faced in future. Nothing may remain static in the world. Nature demands change. A political society undergoes changes with the passage of time. To face new problems and challenges changes and modifications are called for in all aspects of national life. It is therefore, impossible to make a constitution which can satisfy the needs of the people for all times to come. Changing circumstances will require modification of constitutional provisions. A constitution that denies the right to amend it is likely to be destroyed and replaced by the succeeding generations. It is therefore wise to provide for a mechanism to change the constitution in the Constitution itself. That is why every modern constitution provides for a machinery or process to amend its provisions. The framers of the Indian Constitution provided for a process which is neither too rigid nor too flexible. Article 368 specially deals with amendments but some other Articles in the Constitution provide for amendments by ordinary legislative process.
In Shankari Prasad’s case soon after the 1st Amendment was made, a controversy arose as to whether fundamental rights could be amended by procedure prescribed in Article 368. The validity of the 1st Amendment was considered by the Supreme Court in Shankari Prasad v. Union of India. It was argued that Article 13 prohibited enacting a law infringing or abrogating the fundamental rights. A law amending the Constitution must conform to Article 13. So the amendment Act is void as violating Article 13. But the Supreme Court did not accept the argument. It held that Article 13 is not applicable to Acts which amend the Constitution. Article 368 permits the Parliament to amend any provision of the Constitution. In 1965 in Sajjan Singh’s case the SC adhered to the judgment given in the Shankari Prasad’s case.
After referring to the reasoning given in Shankari Prasad’s case the learned Chief Justice observed:
“In our opinion, the expression “amendment of the Constitution” plainly and unambiguously means amendment of all the provisions of the Constitution.”
Referring to Art 13 (2), he restated the same reasoning found in the earlier decision and added that if it was the intention of the Constitution-makers to save fundamental rights from the amending process they should have taken the precaution of making a clear provision in that regard. In short, the majority, speaking through Chief Justice Gajendragadkar, agreed that no case had been made out for reviewing the earlier decision and practically accepted the reasons given in the earlier decision. Many judges have stated that Parliament had the power to amend any or all provisions of the Constitution. Also Article 368 contained both the power and procedure for amending the Constitution. However those Judges were clear that an amendment to the Constitution was not the same as a law as understood by Article 13(2). Justice Ray held that all parts of the Constitution were essential, and no distinction could be made between its essential and non-essential parts.
📘 Conclusion
The judgment reversed the Supreme Court’s earlier decision which had upheld Parliament’s power to amend all parts of the Constitution, including Part III related to Fundamental Rights. The judgement left Parliament with no power to curtail Fundamental Rights.
The Supreme Court, by thin majority of 6:5, held that a constitutional amendment under Article 368 of the Constitution was an ordinary ‘law’ within the meaning of Article 13(2) of the Constitution. The majority did not believe there was any difference between ordinary legislative power of the parliament and the inherent constituent power of parliament to amend the Constitution. The majority did not agree with the view that Article 368 of the Constitution contained “power and procedure” to amend, but instead believed that the text of Article 368 only explained the procedure to amend the constitution, the power being derived from entry 97 of the List I of the VII Schedule to the Constitution.
Since according to Article 13(3), the parliament could not make any law that abridges the Fundamental Rights contained in Part III of the Constitution, a constitutional amendment, also being an ordinary law within the meaning of Article 13, could not be in violation of the fundamental rights chapter contained in the Constitution of India. Therefore, all constitutional amendments thus far which were in contravention or which had made an exception to fundamental rights chapter of the Constitution were said to be void.
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❓ FAQs on Golak Nath Case (1967) & Article 13(2)
⚖️ Why did the Supreme Court hold that an amendment is a “law” under Article 13(2)?
The Court held (6:5 majority) that the term “law” in Article 13(2) includes constitutional amendments. Since Article 13 prohibits the State from making any law that abridges Fundamental Rights, the Court concluded that amendments violating Part III would also be invalid.
📜 What earlier judgments were overruled by the Golak Nath verdict?
The decision overruled the Supreme Court’s earlier rulings in Shankari Prasad (1951) and Sajjan Singh (1965), both of which had held that constitutional amendments could modify Fundamental Rights because “law” under Article 13 did not include amendments.
🔍 Why was there a conflict between Articles 13 and 368?
Article 13 prohibits the State from making any law infringing Fundamental Rights, while Article 368 allows Parliament to amend the Constitution. This created a conflict: could amendments affect Part III? Golak Nath resolved it by ruling that amendments fall within Article 13 and cannot abridge such rights.
📘 Did the Court accept the idea of constituent power being different from legislative power?
No. The majority rejected the distinction. It held there was no separate “constituent power” under Article 368. Instead, the amending power was treated as ordinary legislative power, thereby bringing amendments within the definition of “law” under Article 13(2).
🧾 Why did the Court emphasize the importance of protecting Fundamental Rights?
The majority believed that Fundamental Rights occupy a “transcendental” position in the Constitution. Allowing Parliament to amend them freely could result in their dilution or abolition. Treating amendments as “law” ensured that Parliament could not curtail or infringe these rights.
🏛️ What was the practical impact of the Golak Nath ruling on future amendments?
The judgment made all past and future amendments affecting Fundamental Rights void. However, this position changed later in Kesavananda Bharati (1973), where the Court held that Parliament could amend any part of the Constitution as long as it did not damage the “basic structure.”
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