1 Golaknath v state of Punjab

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5 Facts
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The family of Henry and William golaknath were in possession of over 500
acres of farmland in Jalandhar, Punjab. Under the Punjab security and Land
Tenures Act, the government held that the brothers could keep only thirty
acres each, a few acres would go to tenants and the rest was declared
surplus. This was challenged by the family of golaknath in the courts.
Further, this case was referred to the Supreme court in 1965.
The family filed a petition under Article 32 challenging the 1953 Punjab Act
on the grounds that it denied them their constitutional rights to acquire and
hold property and practice any profession (Article 19 (f) and (g) and to
equality before the protection of the law (Article 14). They sought to have
the seventeenth amendment – which had placed the Punjab Act in ninth
schedule – declared ultra vires (beyond the powers).
Golaknath. I.C v State of Punjab is one of the landmark cases in the Indian
history. With its ruling, in this case, the court developed jurisprudence
around what is known as the doctrine of basic structure. The court in 1967
ruled that the Parliament can not curtail any of the fundamental rights
enshrined under the constitution of India. 

Arguments by parties

Petitioner’s arguments
 The petitioner argued that the constitution of India was drafted by
the constituent assembly and it is of permanent nature. No one can
change or can try to bring change in the constitution of India.
 They argued that the word “amendment” in question only implies a
change in accordance with the basic structure but not altogether a
new idea.
 Further, the petitioner contended that the fundamental rights
enshrined under part III of the constitution cannot be taken away by
the parliament. They are the essential and integral part of the
constitution without which constitution is like a body without a soul.
 The petitioner also argued that Article 368 of our constitution only
defines the procedure for amending the constitution. It does not
give the power to the parliament to amend the constitution.
 The last thing on which the petitioner argued before the court was
that Article 13(3)(a) in its definition of “law” covers all types of law
i.e. statutory and constitutional etc. And by virtue of Article 13(2),
which says that the state cannot make any law which takes away
the rights mentioned under Part 3, any constitutional amendment
which takes away the Fundamental rights will be unconstitutional
and invalid.
Respondent’s arguments 
 The respondent contended before the court that constitutional
amendment is a result of the exercise of its sovereign power. This
exercise of sovereign power is different from the legislative power
which parliament exercises to make the laws.
 Our constitution makers never wanted our constitution to be rigid in
its nature. They always wanted that our constitution to be flexible in
its nature.
 The object of the amendment is to change the laws of the country
as it deems fit for the society. They argued that if there won’t be
any provision for amendment then, it would make constitution a
rigid and non-flexible one.
 They further argued that there is no such thing of basic structure
and non-basic structure.
 All the provisions are equal and of equal importance. There is no
hierarchy in the constitutional provisions. 

Judgement
In this case, at that time the supreme court had the largest bench ever. The
ratio of the judgment was 6:5, majority was favouring the petitioners. The
CJI at that time and with other justices (J.C. Shah, S.M. Sikri, J.M. Shelat,
C.A. Vaidiyalingam) wrote the majority opinion. Justice Hidayatullah agreed
with CJI Subba Rao and therefore he wrote a separate opinion. Whereas
Justices K.N. Wanchoo, Vishistha Bhargava and G.K Mitter they all wrote
single minority opinion and justices R.S. Bachawat & V. Ramaswami wrote
separate minority opinions.

The majority opinion of golakh Nath shows scepticism in their minds about
the then course of parliament. Since 1950 the parliament has used article
368 and have passed a number of legislations that had in one or other way
have violated the fundamental rights under part III of the constitution. The
majority had doubts that if Sajjan Singh remained the law of the land, a time
can come when all fundamental rights adopted by our constituent assembly
will be changed through amendments. Keeping in view the problem of
fundamental rights and fearing that there can be a transfer of Democratic
India into totalitarian India. Therefore, the majority overruled Sajjan Singh &
Shankari Prasad. 

The majority said that the parliament has no right to amend the fundamental
rights. These are fundamental rights are kept beyond the reach of
parliamentary legislation. Therefore, to save the democracy from an
autocratic actions of the parliament the majority held that parliament cannot
amend the fundamental rights enshrined under Part III of the Constitution of
India The majority said that fundamental rights are the same as natural
rights. These rights are important for the growth and development of a
human being.

Second site

Reasons  

The reasons which prompted the majority to arrive at this decision are as follows:

1. According to the majority, the impugned Article 368 through which the parliament
was drawing power to amend the Constitution in fact merely laid down the procedure
of amending the constitution. The majority relied on the Marginal note of the earlier
Article 368 to arrive at this conclusion.
2. The majority located the power to amend the constitution in Article 248 of the
Constitution which provides for the Residuary power of Parliament. Since the product
of Article 248 is law, therefore, in majority’s opinion Amendment of Constitution is
“law” for the purposes of article 13(2) of Constitution.
3. The absence of word “amendment” in the definition of “law” was answered by the
majority in the form that the definition under Article 13(3)(a) is not exhaustive rather
it is inclusive.
4. Justice Hidayatullah, though writing a separately but agreed to CJI Subba Rao on the
point that there is no difference between legislative and amending process.
The reasons which prompted the minority to arrive at their stance are as follows:       

1. The minority bench was fearful of the stance of majority in the sense that if majority’s
opinion becomes established law then it would grant tough rigidity to the Constitution.
They were sceptical that if Parliament is not provided with amending competence the
Constitution would become static & all the dynamic nature of Constitution will meet
death.
 2. In accordance with the minority opinion although the procedure of Article 368 does
very much correspond to the legislative process but it is different from ordinary
legislation.
Doctrine Of Prospective Overruling

The judgment inter alia provides for Prospective Overruling of the law laid down by this
Judgment. The decision to prospectively overrule earlier decisions was a smart and reasonable
move played by the Judiciary. The doctrine of prospective overruling implies that the effects of
the law to be laid down will be applicable on the future dates only i.e. past decisions will not be
affected by this decision. Prospective Overruling was chosen by the majority because of the
following reasons:

1. The majority in order to save the nation from the chaos of retrospective operation and
the judicial branch from multiple litigations that may follow after the decision opted
for prospective overruling. This was in order to minimize the negative impact of the
judgment invalidating the earlier constitutional amendments.
2. Another reason because of which the majority opted for prospective overruling was
since the decision in Golaknath was that parliament cannot amend Fundamental
rights, therefore, all of the previous amendments would be invalid and
unconstitutional. However, these amendments were in consonance & in strict
accordance with the laws laid down in Shankari Prasad and Sajjan Singh, therefore
they were valid as per the previous law.
Justice Hidayatullah also supported Prospective Overruling by opining that previous decisions
should not be affected by the ratio laid down by the present decision.

Conclusion

The Golakh v state of Punjab was one of the important cases in India history.
The judgement of this case came at a very crucial time. It came when the
democracy was suffering from the start of what later became the “darkest
decade” of India. This judgment helped to stop the parliament from showing
its autocracy. The majority bench was afraid of deterioration of the soul of
the constitution. This judgement forbade the parliament from causing any
damage to the fundamental rights of the citizens by implementing a law
which had the effect of suppressing the autocracy of the parliament. 

The judgment was focused on protecting the fundamental provisions which

are equal to fundamental or natural rights of mankind and no government
can take it. Golaknath is a kind of victory of “rule of law” because it made it
clear that even the lawmakers are not above the law. This case reinforced
the faith of the citizens that the law is supreme, not the one who makes
it(Parliament), neither who implements (Executive) it and nor the one who
interprets it (Judiciary).

But there‘s nothing perfect in this world. The same goes with this judgment.
The judgement of Golaknath is not a perfect judgement. One of the biggest
flaws was that the judgement granted rigidity to the constitution. The court
said if there has to be an amendment then it has to be through a constituent
assembly. Secondly, the court only protected the fundamental rights from
the absolute power of the parliament but it could have protected all the
fundamental features of the constitution. They did not use the opportunity in
a way they could have used. Due to these kind of problems in the judgement
it was overruled to some extent in another landmark judgment in the case of
Kesavananda Bharati v Union of India 1973. To read more about
Kesavananda Bharati v Union of India 1973 refer to the link given below.

Significance[edit]
Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court judgement. It
amended the Constitution to provide expressly that Parliament has the power to amend any part
of the Constitution including the provisions relating to Fundamental Rights. This was done by
amending articles 13 and 368 to exclude amendments made under article 368, from article 13's
prohibition of any law abridging or taking away any of the Fundamental Rights. [5]
In 1973, the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala held
that the Parliament under the Indian Constitution is not supreme, in that it cannot change
the basic structure of the constitution.[6] It also declared that in certain circumstances, the
amendment of fundamental rights would affect the basic structure and therefore, would be void.
Thus, one can see that this case is drawn on a larger canvas as compared to that of Golaknath.
It also overruled Golaknath and thus, all the previous amendments which were held valid are
now open to be reviewed. They can also be sustained on the ground that they do not affect the
basic structure of the constitution or on the fact that they are reasonable restrictions on the
fundamental rights in public interest. Both the cases, if seen closely, bear the same practical
effects. What Golaknath said was that the Parliament cannot amend so as to take away the
fundamental rights enshrined in Part III, whereas in Keshavananda, it was held that it cannot
amend so as to affect the basic structure.

/////////////////////In this case, at that time the supreme court had the
largest bench ever. The ratio of the judgment was 6:5, majority was
favouring the petitioners. The CJI at that time and with other justices (J.C.
Shah, S.M. Sikri, J.M. Shelat, C.A. Vaidiyalingam) wrote the majority opinion.
Justice Hidayatullah agreed with CJI Subba Rao and therefore he wrote a
separate opinion. Whereas Justices K.N. Wanchoo, Vishistha Bhargava and
G.K Mitter they all wrote single minority opinion and justices R.S. Bachawat
& V. Ramaswami wrote separate minority opinions.
Fundamental rights are considered to be necessary for the development of
human personality. These rights are the rights which helps a man to figure
out his/her own life in a manner he/she wants. Our constitution has given us
the fundamental rights which also includes the rights of minorities and other
backward communities. According to the Constitution, Parliament and the
state legislatures in India have the power to make laws within their
respective jurisdictions. But, this power is not absolute in nature. The
Constitution rests with the judiciary and the power to adjudicate upon the
constitutional validity of all laws also rests with the judiciary. 

If a law made by Parliament or the state legislatures violates any provision of

the Constitution, the Supreme Court has the power to declare such a law
invalid, unconstitutional or ultra vires. This check notwithstanding, the
founding fathers wanted the Constitution to be an adaptable document rather
than a rigid framework for governance. They wanted it to be a flexible
document which can adjust or adapt itself according to the changing
situations. 

Parliament was invested with the power to amend the Constitution. Article
368 of the Constitution gives the impression that Parliament’s amending
powers are absolute and encompass all parts of the document. But the
Supreme Court has acted as a brake to the legislative enthusiasm of
Parliament ever since independence. With the intention of preserving the
original ideals envisioned by the constitution-makers, the apex court
pronounced that Parliament could not twist, damage or alter the basic
features of the Constitution under the pretext of amending it. The phrase
‘basic structure’ itself cannot be found in the Constitution. The Supreme
Court recognised this concept for the first time in the historic Kesavananda
Bharati case in 1973. 

The basic structure of the constitution consists of:

 Supremacy of the constitution;

  Secular character of the constitution; 
 Demarcation of power among the legislature, executive, and
judiciary; 
 Integrity and unity of the nation;
 Democratic and republican form of government; and
 Sovereignty of the nation.

These are the elements of the basic structure of the constitution. The
parliament has the right to amend anything but it can not amend or change
any of the fundamental elements of the basic structure. Majority believed
that the parliament was drawing power of amendment from article 368
whereas this article only provides the producer of an amendment. The
majority said that the power to amend an article of the constitution is under
article 248. The miniority’s opinion was that if the decision comes in favour of
the majority then the constitution will become rigid. And if the parliament will
not have the power of amending the constitution then the constitution would
become static. In accordance with the minority opinion the procedure of
Article 368 very much correspond to the legislative process but it is different
from ordinary legislation.

The judgement provided the prospective overruling of the law. The decision
to overrule the earlier judgements was an important, smart and reasonable
move by the judiciary of the country. This doctrine of prospective ruling said
that effects of the law will only be applicable on future dates or future
judgements. Past decisions will not be get affected by it. There was a reason
why the majority chose the doctrine of prospective ruling. 

These reasons were:

They wanted to avoid multiple litigations which could have followed after this
judgment. 

The majority also chose this to save the nation from the chaos of
retrospective action. 
They also wanted to reduce the negative effect of this judgement which could
have led to invalidating the previous constitutional amendments. 

This was in order to minimize the negative impact of the judgment

invalidating the earlier constitutional amendments.

Another reason why the majority went for prospective overruling was that
since the decision, in this case, was that the parliament has no right to
amend the fundamental rights, therefore, every previous amendment will be
invalid and unconstitutional.

Bibliography
https://en.wikipedia.org/
https://blog.ipleaders.in/
https://lawtimesjournal.in/
https://www.facebook.com/
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