I.C. GOLAKNATH Vs.

STATE OF PUNJAB

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2
 ABSTRACT

After the commencement of the constitution, a phase of India started where the policies of the

government were not aligning with the mandate of the constitution, which lead to a series of

landmark judgments and one of them was the IC Golaknath vs State of Punjab judgment

whose reconsideration lead to India’s greatest landmark judgment Kesavananda Bharti

judgment. It happened during the mid-1960s that one family named Golknath whose excess

property possession was taken over by the Punjab Government under the Punjab Security and

Land Tenures Act, 1953, and thereafter this along with several other acts were inserted in 9 th

Schedule which was challenged in the Supreme court. The petitioners contended that

Fundamental Rights(FR) cannot be abrogated by legislation, whereas the respondents

answered that Parliament has the absolute power to abrogate the FR. It was held by the court

in 6:5 majority that Parliament cannot curtail the Fundamental Rights and overruled the

decision in Sajjan Singh and Shankari Prasad case. Though the judgment did not bring relief

to the Golaknath brothers, the struggle between the government and the judiciary continued

and the government also overturned the Golaknath judgment and two years later the largest

bench in the Supreme court was formed to hear the Kesavananda Bharti case, which

overruled the Golaknath judgment.

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 RESEARCH METHODOLOGY

The project employs secondary sources for the fulfillment of the objectives of the study. The

project is Descriptive and analytical and various literary sources have been covered from

journals, news websites, books, various published reports. The project is non-empirical.

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 Table of Contents

DECLARATION.......................................................................................................................2

ACKNOWLEDGEMENTS.......................................................................................................3

ABSTRACT...............................................................................................................................4

RESEARCH METHODOLOGY...............................................................................................5

INTRODUCTION......................................................................................................................7

CHAPTER I - BACKGROUND................................................................................................8

CHAPTER II - FACTS OF THE CASE..................................................................................10

CHAPTER III - ISSUES & ARGUMENTS RAISED............................................................11

CHAPTER IV – JUDGMENT.................................................................................................12

CHAPTER V - THE TUSSLE AFTER JUDGMENT.............................................................13

The Basic Structure Case:-...................................................................................................14

CONCLUSION........................................................................................................................15

WORKS CITED.......................................................................................................................16

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 INTRODUCTION

Indian constitution came into existence on 26th November 1949 and has gone through many

amendments since then, to adapt to the changing times and needs of people of the country

like many other constitutions of different countries. In-fact India had borrowed the feature of

constitutional amendment which is under Article 368, from the constitution of South Africa.

During the 1960- the 70s, the Indian democratic structure has gone through one of its most

turbulent times when a tussle started between the executive and judiciary about what extent

can the parliament amend the Fundamental Rights(FR) which is enshrined in Part-III of the

constitution. In this period the Supreme Court of India delivered some very landmark

judgments of National importance like Sri Shankari Prasad Singh Deo v. Union of India and

State of Bihar, IC Golaknath v. State of Punjab, Kesavananda Bharati v. State of Kerala, and

Minerva Mills Ltd. and Ors v Union of India and Ors. These cases also demonstrate the

changing views of the Apex court in the context of the FR’s and amendments and during this

period several attempts were made by the Parliament to undermine the FR’s of the people,

which were subsequently quashed by the Hon’ble Supreme court.

These judgments also lead to the announcement of the basic structure doctrine in

Kesavananda Bharati v. State of Kerala case which was earlier emphasized by Justice JR

Mudholkar JJ while dissenting in Sajjan Singh v. State of Rajasthan

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 CHAPTER I - BACKGROUND

After the formation of the constitution, the Right to property under Article 31 was a

Fundamental Right and the state followed a socialist pattern of development, under which

land reform laws were enacted in states like Bihar, Uttar Pradesh, and Madhya Pradesh to

acquire a significant portion of land from big landholders. The landholders( Zamindars) of

Bihar challenged the law on the ground of violating FR’s, which was struck down by the

Patna High Court in 1951. The Government then passed The Constitution First Amendment

Act 1951 which inserted Article 31(A), wherein any law providing for the acquisition of

property by the state will not be deemed invalid on the grounds of derogation of FR & article

31(B) provides validation of certain acts and regulations which are inserted in the Ninth

Schedule, could not be challenged in any court of law.

The petitioners then challenged the First Amendment in Shankari Prasad v. Union of India

that the expression of ‘law’ in Article 13 also includes the term ‘amendments’ and the court

held that the parliament has the authority to amend or take away the Fundamental Rights and

‘constitutional amendments’ are not included in the definition of law inscribed in Article

13(3). Soon after Shankari Prasad another case of similar type but different facts came

known as Sajjan Singh v. State of Rajasthan (1964) where the constitutionality of

Constitution Seventeenth Amendment Act 1964 was challenged before the apex court and

the court held that Parliament can amend any part of the constitution under Article 368.

While it was a majority judgment, Justice M. Hidaytullah, and Justice JR. Mudholkar

dissented and wrote separate opinions, with J. Hidaytullah expressing that constitutional

amendments do not mean an absolute escape from the violation of Fundamental Rights and

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Justice J.R. Mudholkar observed that constitutional amendments are a part of the definition of

law and cannot be treated separately and also talked about for the first time, ‘The Basic

Structure doctrine’ in reference to a Supreme court case of Pakistan Fazlul Quader Chowdhry

v. Mohd. Abdul Haque.

After these two dissenting opinions, a larger bench with 11 judges was constituted to deal

with similar types of questions raised in another landmark case known as, “ I.C Golaknath v.

State of Punjab”, where the earlier view of the Supreme court in Shankari Prasad and Sajjan

Singh was completely overturned by a 6:5 majority judgment, but the Constitution First,

Fourth and Seventeenth amendments were declared valid because of the ‘prospective ruling

doctrine’ instead of retrospective application. Thus the court observed that “Parliament had

no power to amend the Fundamental Rights” without giving any relief to the parties of the

Golaknath case.

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 CHAPTER II - FACTS OF THE CASE

In Punjab (Jalandhar), there was a family named Henry and William Golaknath who held

around 500 acres of land as their property. During the Nehruvian era, land reform policies

were being implemented by various state governments across the country through the 9 th

Schedule and in Punjab, under the Punjab Security and Land Tenures Act, 1953. A notice

was issued to the family that under the above-mentioned Act the possession of the surplus

property of the family according to the Act will be taken over by the state as government land

and they will be required to have only 30 acres of land. This order was challenged by the

Golaknath brothers and the case was later referred to the Supreme court in the year 1965.

Several other petitions were also filed in this case to challenge similar agrarian reforms act

like the Mysore land Reform Act of They filed the petition under Article 32 based on the

violation of Article 19(1) (f) which guarantees the right to acquire, hold and dispose of the

property and Article 14 Right to equality under the above-mentioned Punjab Act 1953. They

also requested for the quashing of the Constitution 17th Amendment 1964.

Judges of the Case:-

The Supreme Court formed the largest bench headed by Chief Justice K. Subba Rao

consisting of 11 judges at that time to decide on this case. The judgment was delivered in a

6:5 ratio, with CJI Subba Rao along with justices J.C. Shah, S.M. Sikri, J.M. Shelat, C.A.

Vaidiyalingam writing the majority opinion, while Justice M. Hidaytullah agreeing to the

observations made by Honourable CJ. The minority opinions were written by Justices K.N.

Wanchoo, Vishistha Bhargava, G.K Mitter, R.S. Bachawat, and V. Ramaswami.

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 CHAPTER III - ISSUES & ARGUMENTS RAISED

Arguments raised by Petitioners:-

The petitioners submitted that Article 368 read with Article 245 talks only about the

procedure to amend the constitution and provides only limited powers to improve the

constitution but not to change that whole constitution. These powers have certain limitations

which are called basic structure or essence of the constitution.

They also urged that the word ‘law’ in Article 13(2) includes ‘amendment’ made to the

constitution and hence by virtue of Art. 13(2) no law or amendment can be made which can

take away the FR mentioned in Part III of the constitution. They also questioned the way of

putting a large number of agrarian reform acts into the Ninth Schedule.

Submissions made by Respondents:-

In reply to the petitioners’ arguments, the state submitted that under Article 368 parliament

can amend the constitution not only to the extent of only improving it but also can add to the

constitution or delete any of the existing provisions of the constitution.

“ Subject only to complete repeal, the power under Art. 368 is unfettered”

They also urged that under Art. 368 there is no written or implied limitation on the power to

amend the constitution, and what is to be followed duly is the procedure prescribed in the Art.

368. It is further said that ‘amendment’ is not included in the world ‘law’ in Art. 13(2) and

laws are only legislative provisions.

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 CHAPTER IV – JUDGMENT

“A Constitution is a law which is intended to be for all the time and is difficult to change so

that it may not be subject to “impulses of the majority” “temporary excitement”

and popular caprice or passion”

-Justice M. Hidayatullah

The court declared in I. C. Golakh Nath v. State of Punjab after listening to all the arguments

from all the parties that, “ Parliament has no power to amend Part III of the constitution so as

to take away or abridge the Fundamental Rights” and Article 245, 246 and 248 guarantees the

source of power for amendment in the constitution. It was also announced that the current

judgment will not have any retrospective effect on the previous amendments like 17 th

Amendment 1964 as it will bring chaos and confusion throughout the country. Therefore the

court followed the ‘doctrine of prospective overruling’. It also observed that the word

‘Amendment’ is within the ambit of the definition of ‘law’ under Article 13 as amendments

are brought by parliament by following the ordinary process, prescribed for ‘law’. The

validity of previous constitutional amendments like the First Amendment Act (1951), Fourth

Amendment Act (1955), and Seventeenth Amendment (1964) was also upheld by the court

based on the earlier decisions. Thus the main petitioners, i.e. the Golaknath brothers were not

given any relief by the judgment, and the Parliament after this decision will not alter the

provisions in Part-III, so as to abridge the Fundamental Rights of the common people. This

judgment also overturned the decision of the Sajjan Singh and Shankari Prasad case.

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 CHAPTER V - THE TUSSLE AFTER JUDGMENT

After the Golak Nath judgment which changed the political, social, and legal history of our

country, the battle for Fundamental Rights and Amendment powers took the ugliest shape in

the history of Indian democracy. Two years after the Golaknath judgment on 19 th July 1969

the Indira Gandhi government nationalized around 75% banking sector of India by an

ordinance to further the goal of her socialist policies. This unexpected move led to the filing

of petitions from the bank authorities and the main petitioner was R.C. Cooper led by learned

counsel Nani Palkhivala. The court upheld the right to nationalize the banks by the

Government but the ‘compensation scheme’ in the ordinance was struck down by the apex

court and there is the Right to compensation. Soon it was evident for the government that the

biggest hurdle in achieving the socialist goals of the government was the IC Golaknath

judgment, So the Indira government came up with the 24th Constitution Amendment 1971 to

overturn the Golaknath judgment which stated that, “Parliament in exercise of its Constituent

power may amend by way of addition or variation any provision of the constitution”. The

amendment also reduced the power of President to facilitate the process of amendments. To

achieve another objective the government came up with the 25 th Constitutional Amendment

Act, 1971 which remove the word ‘compensation’ from the Article and also provided

immunity to any other future amendment, which helps in achieving the provisions of

Directive Principles of State policy. Once again in 1970, the Indira Gandhi government

abolished the privy purse by the 26th Constitutional Amendment, guaranteed to the princely

states at the time of Independence. Thus the government during these years aggressively tried

to further its agenda by bringing in amendments, which were also undermining Fundamental

Rights.

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The Basic Structure Case:-

The turning point came when the Chief of math his Holiness Swami Kesavananda Bharti

challenged the Kerala land Reforms Act,1969 with the assistance of the learned counsel Nani

Palkhivala on the grounds of violating Art. 31, 25 & 26 as the Act deprived the math its

property. He also challenged the 24th, 25th & 29th Constitution Amendment along with the

above petitions before a 13 Judge bench ( the largest bench ever sat in the history of the

judiciary of India) for 69 days.

The most important question came before the bench was about what extent can the

Parliament amend the FRs’ and whether it is absolute or can be judicially reviewed? The

court replied to all the questions with each judge expressing their own opinion in a 7:6, with

justice HR Khanna expressing dissent and the validity of all three Amendments which were

in dispute was upheld by the court. The court also overruled the IC Golaknath case and said

that Parliament can amend the Fundamental Rights as long as it does not alter the basic

structure or essentials of the constitution. The court did not elaborate on what constitutes the

basic structure.

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 CONCLUSION

The Golaknath judgment was historical in many aspects and also remarkable in current

circumstances as the apex court reversed its earlier decision of the Sajjan Singh case and

upheld the rights of the individual over the state. “These rights are given a transcendental

position and are kept beyond the reach of Parliamentary legislation” It also tells us about the

different perspective of judges at that time as Justice M. Hidaytullah while agreeing to the

majority opinion wrote a separate opinion in the judgment and Justice Wanchoo while

writing the minority opinion said that judgments in Shankari Prasad and Sajjan Singh were

correct and amendment is not included in the definition of law. The view of Chief Justices in

Judgements also varied as two C.J. Kania and Gajendragadkar were in the opinion to amend

the Fundamental Rights, while Chief Justice Subha Rao was against it in Golaknath

judgment.

Though the Golaknath judgment was a symbolic judgment for common citizens, it affected

mostly the rights of affluent and wealthy sections of society whose lands were acquired by

the state under land agrarian reforms. The judgment also seeks to make the constitution more

rigid and permanent as contrary to dynamic and flexible features of our constitution by

misinterpreting the Art. 245, 246 & 248 of the constitution. The majority judgment of

Golaknath has also widely viewed the term ‘amendment’ included in the definition of ‘law’

in Art 13(2) in which the by general reading the term ‘Amendment’ cannot be found. Thus

the Golaknath judgment became a big hurdle to the then government which was pursuing its

socialist agenda, but this judgment has received little praise from the legal scholars and

experts due to some apprehensions about the correctness of the judgment.

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 WORKS CITED

Mody, Zia. 10 Judgements that Changed India. Penguin Books, 2013.

Ganguly, Asok K. Landmark Judgments that Changed India. Rupa Publications, 2015.

Varshney, Hemant. “I. C. Golaknath & Ors. Vs. State of Punjab & Anrs. – Case Summary”

LawTimesJournal. 14th August 2018, http://lawtimesjournal.in/i-c-golaknath-ors-vs-state-of-

punjab-anrs-case-summary/

Mukhopadhyay, Nilanjan. “Past Continuous: Two Judgements That Held the Constitution

Above Parliament” The Wire, 9th May 2017, https://thewire.in/history/past-continuous-the-

two-judgements-that-held-the-constitution-above-the-parliament

Saharay, H.and H. Saha Ray “A HISTORIC DECISION IN THE SUPREME COURT OF

INDIA”, The Indian Journal of Political Science, Vol. 29, No. 1, (January-March 1968), pp.

18-28, https://www.jstor.org/stable/41854243

Raza, Aqa. “Doctrine of Basic Structure: A Critique”

https://www.researchgate.net/publication/344754160.

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