SHANKARI PRASAD CASE

In the case of Shankari Prasad Singh v. Union of India 1, the power of the Parliament to amend

the Fundamental Rights was challenged by the petitioner. The petitioner challenged the

constitutionality of the First Amendment as being violative of Article 13 2 of the Indian

Constitution because the impugned amendment abridged Article 313. The case brought out the

possibility of a conflict between Article 13 and Article 368 of the Constitution.

The Court held that the word ‘law’ under Article 13 doesn’t include amendments within its

constitutional ambit. It stated in its judgement that Parliament has the power to bring in

amendments without any exceptions and that even Fundamental rights are not outside the ambit

of Parliament’s powers to bring amendments under Article 368. The court rejected the view of

inviolability of the Fundamental Rights and held that there is a difference between the ordinary

legislative power and the constituent power and that even if Parliament cannot violate Part III

using its normal legislative power but it can curtail it by its inherent constituent power.

SAJJAN SINGH CASE

In this case, the validity of the seventeenth amendment was questioned under which a number of

statutes affecting property rights were placed in the Ninth Schedule of the Constitution in order

to keep them out of the purview of the judicial review. The petitioners contended that it was

aimed at restricting the ambit of the judicial review. The Court applied ‘pith and substance’ to

test the amendment in its pith and substance and decided that the amendment in its crux aims at

amending fundamental rights and not at restricting the scope of Article 226 in any manner. The

apex court restated the difference between legislative and constituent powers of the Court. But

2
3
Justice Mudholkar in his minority opinion expressed his view that there are certain basic features

in every constitution which could not be altered.

GOLAK NATH CASE

The petitioners in this case again challenged the Seventeenth Amendment of the Indian

Constitution. An eleven judge constitutional bench reversed the then existing position in 1967 by

stating that4:

1. Article 368 merely lays down the amending procedure and does not confer upon the

Parliament any power to amend. The amending power which was said to be the

constituent power arose from Article 245, 246 and 248 which conferred Parliament with

the plenary legislative powers. So essentially, there was no difference between the

constituent and the legislative power as such as given in the previous cases (Shankari

Prasad and Sajjan Singh).

2. Article 13 of the Constitution also includes amendment as ‘law’ and so if it takes away or

abridges the rights conferred by Part III thereof, it is void.

3. The judgement will have only prospective operation and, therefore, the said amendments

will continue to be in force.

4. The case held the fundamental rights to be sacrosanct.

The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other counsels

while arguing for the petitioners in the Golaknath case, but the basic structure as a concept

surfaced in the text of the apex court's decision in Keshavananda Bharti case only.

4
I.C. Golak Nath v. State of Punjab,