A PROJECT

ON

SHANKARI PRASAD V. UNION OF INDIA, AIR 1951 SC 458

SUBJECT: CONSTITUTIONAL LAW

SESSION: 2021-2022

SUBMITTED ON: 23 JULY 2022

SUBMITTED BY: SUBMITTED TO:

RAHUL BAGARI MS. LATA SOMANI

ROLL NO. 54 (FACULTY)

CLASS- 4th SEMESTER

SECTION- A

University Five Year Law College

University of Rajasthan, Jaipur

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DECLARATION :-

I, Rahul Bagari, hereby declare that project titled "SHANKARI PRASAD V. UNION
OF INDIA, AIR 1951 SC 458" is based on the original research carried out by me under the
guidance and supervision of Ms. Lata Somani.

The interpretations put forth are based on my reading and understanding of the original text.
The book, article and website etc. which have been relied upon by me have been duly
acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or diploma has been
conferred on me before, either in this or in any university.

DATE: SIGNATURE

23 JULY 2022 Rahul Bagari

ROLL NO. 54

CLASS- 4th SEMESTER'A'

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CERTIFICATE :-

Ms. Lata Somani ; Date: 23 July 2022

Faculty of Constitutional Law
University Five Year Law College
University of Rajasthan, Jaipur

This is certify that Mr. Rahul Bagari, student of 4th semester 'A' of University Five Year
Law College, University of Rajasthan has carried out the project titled "SHANKARI
PRASAD V. UNION OF INDIA, AIR 1951 SC 458" under my supervision and guidance.

It is an investigation report of a minor project. The student has completed research Work in my
stipulated time and according to the norms prescribed for the purpose.

Supervision

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ACKNOWLEDGEMENT :-

I have written this project, "SHANKARI PRASAD V. UNION OF INDIA, AIR 1951
SC 458" under the supervision of Ms. Lata Somani, Faculty of Constitutional Law,
University Five Year Law College, University of Rajasthan, Jaipur. Her valuable suggestions
here in not only helped me immensely in making this work but also in developing an analytical
approach this work.

I found no words to express my sense of gratitude for Director Dr. Aruna Chaudhary.

I am grateful to librarian and library staff of the college for the support and cooperation
extended by them from time to time.

Rahul Bagari

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TABLE OF CONTENT :-

CERTIFICATE..............................................................................................................................02

DECLARATION...........................................................................................................................03

ACKNOWLEDGEMENT.............................................................................................................04

ABSTRACT...................................................................................................................................06

CHAPTER-1
INTRODUCTION.........................................................................................................................07

CHAPTER- 2
ISSUES RAISED...........................................................................................................................08

LAW INVOLVED.........................................................................................................................08

APPLICATION OF LAW.............................................................................................................09

PETITIONER'S ARGUMENT......................................................................................................09

RESPONDENT'S ARGUMENT..............................................................................................09-10

CHAPTER-3
JUDGEMENT................................................................................................................................11

CRITICAL ANALYSIS...........................................................................................................11-12

FURTHER DEVELOPMENTS IN JOURNEY OF BASIC STRUCTURE...........................12-13

OVERRULING OF SHANKARI PRASAD V. UOI....................................................................13

CONCLUSION..............................................................................................................................14

BIBLIOGRAPHY..........................................................................................................................15

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 ABSTRACT
The Doctrine of Basic Structure evolved through series of verdicts in India, one such case was
of Shankari Prasad Vs. Union of India. This case was result of the ongoing struggles between the
judiciary for sovereignty in independent India. Under this case question was raised of whether
the fundamental rights can be amended under Article 368 by the parliament or not.

Herein, the validity of the First Amendment of the Constitution 1951 was also challenged which
curtailed the Fundamental Right to Property under Article 31.The major augment that was
brought forward was that Article 13 prohibits the enactment of law abridging the Fundamental
Right.

QUICK INSIGHTS OF THE CASE:

COURT HON'BLE SUPREME COURT OF INDIA

JUDGEMENT DATE 5 OCTOBER 1951
CITATION 1951 AIR 458, 1952 SCR 89
BENCH CONSTITUTIONAL BENCH (HIRALAL
KANIA CJ AND M. PATANJALI
SASTRI, B.K. MUKHERJEE AND
S.R.DAS AND CHANDRASEKHARA
AIYAR, JJ.)
PETITIONER SRI SANKARI PRASAD SINGH DEO

RESPONDENT UNION OF INDIA AND STATE OF

BIHAR

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 CHAPTER - 1

INTRODUCTION

The case of Shankari Prasad v Union of India contributes to the journey of “The Doctrine
of Basic Structure” which was a result of the ongoing struggle between the judiciary and the
legislature for supremacy in independent India. The question of whether the fundamental rights
can be amended under Article 368 was brought before the Supreme Court of India in this case. In
this case, the validity of the First Amendment of the Constitution 1951 was challenged which
curtailed the right to property. The Fundamental Right under Article 31 provides the ‘right to
property’. The basic argument which was brought forward in the above case was that Article 13
prohibits the enactment of law abridging the Fundamental Right. The Supreme Court narrowed
the scope of Article 13(2).

Background :-
After the Independence of India, the agrarian land reforms through legislation was enacted in the
states of Bihar, Uttar Pradesh and Madhya Pradesh which was known as the Zamindari Abolition
Act. The zamindars were upset because due to this they were deprived of their respective
landholdings. The zamindars to get hold of there properties filled a petition in the High Court of
Bihar, Uttar Pradesh and Madhya Pradesh as this law is violative of their Fundamental Rights.
The Patna High Court invalidated the Bihar Land Reforms Act 1950, whereas High Courts at
Allahabad and Nagpur upheld the validity of the legislation in Uttar Pradesh and Madhya
Pradesh.

The Government brought forward a remedy in the form of the Constitution (First Amendment)
Act, 1951 to put an end of the various litigation regarding the same issue. The zamindars reacted
by bringing the petition under Article 32 of the Constitution and raised the question whether the
Constitutional (First Amendment) Act, 1951 which was passed by the Parliament and insert
article 31A and article 31B in the Constitution of India is unconstitutional and void.

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 CHAPTER - 2

It was the case of Shankari Prasad vs. Union of India, which challenged the first
constitutional amendment 1951. It challenged the validity of the first amendments on grounds
that with the insertion of A31-A and A31-B the two provisions limited the scope of right to
property- a fundamental right. It was contended that the first amendment also violated Article
13(2), which is deemed as a protector of fundamental right. Also, it raised issues such as-whether
the parliament can amend the constitution? Can the fundamental rights be amended? And, to
what extent can the constitution be amended under Article 368?

India during 1950's had just become an independent nation state and within a period of fourteen
months since the adoption of the Constitution, the Indian government required modification of
one of its basic features of individual liberty. This surely, was alarming and hence all issues
surrounding the same become very important.

Issues Raised :-
• Whether the 1st Constitutional Amendment, 1951 passed by the Parliament is valid.
• Whether the word ‘law’ used under Article 13(2) also includes the ‘law of the amendment
of the Constitution of India.

Law Involved :-
• Article 13(2) of the Constitution of India.
• Article 31A and 31B of the Constitution of India.
• Article 368 of the Constitution of India.
• Article 132 of the Constitution of India.
• Article 226 of the Constitution of India.

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Application of Law :-
• Article 13(2) mentions that no law can be enacted which abridges the Fundamental Right.
• Article 368 provides for the amending power of the Constitution.

Petitioner’s Argument :-
The Advocates from the Petitioner contented on the following points:

1. The Parliament was incompetent in exercising its power mentioned under Article 379 as the
power mentioned under Article 368 of amending the Constitution is not conferred on
Parliament but is as a nominative body on the two Houses of Parliament.
2. Under Article 368 the power conferred on them calls for collegial action from both the
Houses of Parliament and could be justly operated only by the Parliament to be duly be
incorporated as under Chapter II of Part V.
3. That Article 368 is a complete code and it neglects for any amendments in the bill after it is
being given in the House for its passing. They further stated that the bill, in this case, which
has been amended on several occasions before it came in front of the House, the
Amendment Act has not been passed in conformity as per the prescribed procedures in
Article 368.
4. The 1st Amendment Act, 1951 which inserts Article 31A and 31B violate and abridges the
Fundamental Rights conferred through Part III of the Constitution with the restrictions of
Article 13(2).
5. The article 31A and 31B which is inserted through the First Amendment Act, 1951 also
seeks to bring changes in Chapter IV of Part V’s Article 132 and 136 and Chapter V of Part
VI’s article 226, these requirements for ratification under clause (b) of Article 368 has to be
followed, and it has not been ratified in here and so they are void and unconstitutional. It
also ultra vires the matters in List II, for which the only the State Legislature and not
Parliament have any power to make laws.

Respondent’s Argument :-
1. On the very first instance, it was submitted that according to the fundamental law of our
independent India the Constitution, it should not be held liable for changes as per the wishes

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 of the party majorities, the framers of the Constitution have placed special hardships in the
path of amending the Constitution by providing three different classes for amendment:
• First includes those which are affected by a bare majority for the passing of ordinary
law.
• The second includes those which are affected by a special majority under Article 368.
• Third includes those which are in addition to the special majority as required in second
class and ratification required by not less than one-half of the States as mentioned in the
First Schedule in its Part A and Part B.
2. The third class as mentioned in Article 368 seeks for changes in the provision. The
Parliament which includes the two Houses of Parliament and the President conferred as the
first class of amendment.
3. The Parliament is supposed to have been conferred with the power of amending the other
two classes as no clear indications have been given. As the difference between the class is
merely procedural and no reasons have been given to put their trust in a different body for it.
4. They denied the contention that Article 368 is to be considered as a complete code for the
procedure. In regards to the procedures, it lags as there is inconsistency as to how and after
the introduction of the notice is to be handled. Consisting of the doubts and questions on the
part of its introduction and passing of in each House of Parliament and gaining the
President’s assent. They also contended that the legislative process will also include the
amending of the Constitution.
5. In the context of the word ‘law’ under Article 13 “must be taken to mean rules and
regulations made in the exercise of ordinary legislative power and not amendments to the
Constitution made in exercise of constituent power, with the result of which Article 13(2)
does not affect amendment made under Article 368.”
6. The Parliament holds exclusive power in regards to make the amendment in the Constitution
and it falls within the ambit of the legislature in relation to subject-matter.

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 CHAPTER - 3

Judgement/Holding with Reasoning :-

The judgment was delivered by Hon’ble Judge M Patanjali Sastri.
The Court unanimously held that even if the amendment is considered to be superior to ordinary
legislation, it will not be able to strike its validity by Article 13(2). The word ‘law’ as given
under Article 13(2) ordinarily will be inclusive of Constitutional amendment but it must be in
consideration of ordinary legislative power and therefore the constitutional amendment done by
the Parliament in its constitutional power is not subjected to Article 13(2) and such powers
include the power to amend the Fundamental Rights. The Court observed that “We are of the
opinion that in the context of Article 13 law must be taken to mean rules and regulations
made in the exercise of ordinary legislative power and not amendments to the Constitution
made in the exercise of constituent power with the result that Article 13(2) does not affect
amendments made under Article 368.” The Court upheld the validity of the First Amendment
Act, 1951by using the literal interpretation. It also held that Article 368 entitle the Parliament to
amend the Constitution with treating the Fundamental Rights with any exceptions unlike they are
treated under Article 368. The Court diverged with the view that the Fundamental Rights can be
here inviolable. The Supreme Court narrowed the view if Article 13(2) and adopted the progress
of the independent nation through the acquisition of property.

Critical Analysis :-
The Supreme Court by dismissing the petition by the petitioners have narrowed down the scope
of Article 13(2). The unanimous decision of the bench also followed in the next case of Sajjan
Singh v State of Rajasthan were the court upheld the Shankari Prasad case.
The principal of harmonious construction is used to resolve the dispute between the contradicting
articles. The judges' understanding with respect to Article 13(2) is a bit rudimentary. This article
should have been discussed in length since it acts as a guardian to fundamental rights. The word,
"the state shall not make any law..."5 here, the meaning of law should have been dealt in a wider
sense by incorporating constitutional amendments under the same ambit. The court just ignores
the powers conferred under article 13 (2) by declaring it for ordinary legislative laws and not

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constitutional amendments, in my understanding this rule is not harmonious construction but
rather mere ignorance of article 13 (2).

This case perhaps could lead to a situation of a legal tussle between the legislature and the
judiciary with regards to the Shankari Prasad case. Based on this case the scope of the judiciary
can also be seen narrowed down in the process of ensuring checks and balance-if this case is set
as precedent for future constitutional amendments. It is also true that the parliament represents
the will of the people however having absolute powers could lead to situation of legislative
misadventures. As concluded in Shankari Prasad case, the parliament had powers to amend the
constitution including fundamental right. This situation is rather problematic, on grounds that the
legislature is bestowed with almost absolute power thereby making the fundamental rights not so
fundamental. This situation can also lead to a system of totalitarianism, where we might not even
be left with any fundamental right. Therefore, if part III of the constitution is subjected to Article
368 then we are putting the so-called magna carter of the constitution at the same level with
other laws. Implying the fact that fundamental rights are not so fundamental. Inserting Article
31A and 31B restricts the scope of Article 31 which is right to property. If the purpose of such
fundamental article is defeated, I feel it shall rather be abrogated. Since the entire debate
revolves around fundamental rights, if right to property is no longer a fundamental right, then
debate to an extent is resolved.

Since the constitution is perceived as the backbone of our country. It is important that this
document remains flexible to remain evergreen. However not to an extent that it can be changed
based on the 'whims and fancies' of different political regime. The judges in Shankari Prasad vs.
Union of India should have given the future implications a thought as this case could result in
blatant misuse of power with regards to fundamental rights of the citizens.

Further Development in the Journey of Basic Structure :-

The Indian Judiciary gave the complete amending power but later this position was changed with
a completely different outlook.

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The question regarding the amenability of the Fundamental Rights conferred and given in the
Constitution of India could be revoked or limited by amendment of the question still remains the
centre for the conversation.

The cases which marked and contributed in this judicial discussion which was started in the said
case of Shankari Prasad are Sajjan Singh v State of Rajasthan, Golaknath v State of Punjab and
later all have culminated in Keshavananda Bharti v State of Kerala.

Overruling of Shankari Prasad v Union of India :-

The majority in the case of I.C Golaknath n State of Punjab overruled the said judgement and
held that no distinction can be found between the power of legislative and constituent power.
Justice Hidayatullah held that the amending power was not to be found as the residuary power of
our legislation. The procedure as laid down in Article 368 when compiled resulted in the
amending ability of the Constitution. It can be called the legislative power. The majority held
that the Fundamental Right has a transcendental approach and position in the constitution and so
Article 368 would be incompetent to amend the Fundamental Right.

This added the ongoing controversy and power struggle between the Judiciary and the
Legislature.

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 CONCLUSION

As we know fundamental rights are the basic elements in a democracy, these rights in a sense
are the true spirit of a democracy. These rights ensure individual freedom and promote the
holistic development of the country via its citizens. Insertion of Article 31A broadly meant that
for the purpose of the state development no laws would be unconstitutional, while with the
insertion of Article 31B meant laws introduced under the ninth schedule of the constitution as
legally immune from challenges in any court. These two provisions consequently, limited the
extent of property as a fundamental right under Article 31 of the constitution.

Also, the second most important issue raised is with regards to Article 13(2) which is also
regarded as a protector of fundamental right. Article 13(2) states that "the State shall not make
any law which takes away or abridges the right conferred in part III of the constitution"3. Article
13(2) in a way reflects the fact that the parliament's power with respect to amendment of
fundamental right is limited and restrictive. This issue also becomes relevant because if the
parliament can amend constitutional laws, it would hence put other fundamental rights at
jeopardy. In such situations it becomes very important to know whether the parliamentary
powers are absolute or not.

The Indian constitution is regarded as sacred document which provides duties and
responsibilities of its citizens. It is the basic legal doctrine which governs the law of land. The
constitutional framers had a vision, while formulating this evergreen document. To ensure that
the legal document thrives and propels, it becomes important to preserve and protect the same.
The issues raised in Shankari Prasad challenging the first constitutional amendment, raises
concerns regarding the power and extent of the legislature to amend the constitution. Also, these
set of issues are very important in an active democracy, where the government elected by the
people and is accountable in every sense.

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 BIBLIOGRPHY

Site References :-

1. https://legalserviceindia.com
2. https://en.wikipedia.org
3. https://blog.ipleaders.in

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