PRESIDENCYUNIVERSITY

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SUB: Golaknath V.
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State Of Punjab
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(2016BCL003_)
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ACKNOWLEDGEMENT

DIVYASHREE THE STUDENT OF PRESIDENCY

UNIVERSITY OF SCHOOL OF LAW WOULD
LIKE SAY HER FIRST THANKS TO RADHA
MA’AM FOR PROVIDING SUCH GREAT
OPPORTUNITY FOR DOING THE CASE STUDY IN
LOGIC
SECONDLY I WOULD LIKE TO THANK MR. SUJITH
SURENDRAN SIR FOR GIVING VARIOUS
NUMBER OF IDEA FOR DOING THE LOGISTIC
CASE STUDY AND SUPPORTING LIKE ((((“ HOW
TO DO?,WHEN TO DO ?,WHAT TO DO ?,HOW TO
PRESENT ? , HOW TO BRING GOOD OUT PUT
RESULT?”)))) AND MOTIVATING US EACH TIME
WHEN SIR MEET HIS STUDENT .SO I WOULD LIKE
TO THANK .
THIRDLY I WOULD LIKE TO THANK ALL LEGAL
WEBSITES PERSON WHICH PROVIDED ME A LOT
OF INFORMATION AND HELPED ME IN MY
RESEARCHING IN MY CASE STUDY AND I WOULD
LIKE TO THANK MY SENIORS AND FRIENDS FOR
BRING INTO MY KNOWLEDGE THAT “”” HOW TO
FIND INFORMATION SOURCE””” .
INDEX
SL.N CONTENT PAGE
O
1 FACTS 1-2
2 ISSUES 2-2
INVOLVED
3 REVIEW OF 2-6
THE ISSUES
4 JUDGEMENT 6-7
5 DOCTRINEO 7-8
F
PROSPECTIV
E
 OVERRULEIN
G
6 MINORITY 8-9
REVIEW

GOLAKNATH V.STATE OF
PUNJAB
Golaknath v. State Of Punjab  (1967 AIR 1643, 1967 SCR (2) 762),
or simply the  Golaknath case, was a 1967 Indian Supreme Court
case, in which the Court ruled that Parliament could not curtail any
of the Fundamental Rights in the Constitution
FACTS
The family of Henry and William Golak Nath held over 500 acres of
farmland in  Jalandhar,  Punjab. In the phase of the 1953 Punjab
Security and Land Tenures Act, the state 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 Golak Nath family in the courts and the case was referred to the
Supreme Court in 1965. The family filed a petition under Article 32
challenging the 1953 Punjab Act on the ground that it denied them
their constitutional rights to acquire and hold property and practice
any profession (Articles 19(f) and (g)) and to equality before and
equal protection of the law (Article 14). They also sought to have the
Seventeenth Amendment – which had placed the Punjab Act in the
Ninth Schedule – declared  ultra vires.

ISSUES INVOLVED
   whether Amendment is a “law” under the
meaning of Article 13(2),
 whether Fundamental Rights can be amended or
not.

REVIEW OF THE ISSUES

(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 he 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. The Court stated on this point: “we are of the
opinion that is the context of Art. 13 laws 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 Art. 13(2) do not affect
amendments made under Art. 368.”

The Court held that the terms of Art. 368 are perfectly general and
empower Parliament to amend the Constitution without any
exception. The fundamental rights are not excluded or immunized
from the process of constitutional amendment under Art. 368. These
rights could not be invaded by legislative organs by means of laws
and rules made in exercise of legislative powers, but they could
certainly be curtailed, abridged or even nullified by alterations in
the Constitution itself in exercise of the constituent power.

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. Accordingly, one of these Articles ought to be read as being
controlled and qualified by the other. In the context of Article 13, it
must be read subject to Art. 368. Therefore, the word ‘law’ in Art. 13
must be taken to refer to rules and regulations made in exercise of
ordinary legislative power, and not to constitutional amendments
made in the exercise of the constituent power under Art. 368 with
the result that Art. 13(2) do not affect amendments made under Art.
368. The Court, thus, disagreed with the view that the fundamental
rights are inviolable and beyond the reach of the process of
constitutional amendment. The Court, thus, ruled that Art. 13 refer
to a “legislative” law that is an ordinary law made by a legislature,
but not to a constituent law that is a law made to amend the
constitution. The Court thus held that Parliament could by following
the ‘procedure’ laid down in Art. 368 amend any fundamental right.

Again in Sajjan Singh’s case this issue came up. But the Supreme
Court in this case ruled by majority of 3:2 that the “pith and
substance” of the Amendment was only to amend the fundamental
right so as to help the State Legislatures in effectuating the policy of
the agrarian reform. The conclusion of the Supreme Court in
Shankari Prasad’s case as regards the relation between Arts. 13 and
368 was reiterated by the majority. it felt no hesitation in holding
that the power of amending the Constitution conferred on
Parliament under Art. 368 could be exercised over each and every
provision of the Constitution. The Court refused to accept the
argument that fundamental rights were “eternal, inviolate, and
beyond the reach of Art. 368.”

(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.

JUDGEMENT

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.

The Doctrine of Prospective

Overruling
It was in this case that the then Chief Justice Koka Subba Rao had
first invoked the doctrine of prospective overruling. He had taken
import from American law where jurists like George F. Canfield,
Robert Hill Freeman,  John Henry Wigmore  and  Benjamin N.
Cardozo  had considered this doctrine to be an effective judicial tool.
In the words of Canfield, the said expression means:
"........ a court should recognize a duty to announce a new and
better rule for future transactions whenever the court has
 reached the conviction that an old rule (as established by the
precedents) is unsound even though feeling compelled by  stare
decisis  to apply the old and condemned rule to the instant case
and to transactions which had already taken place".
Taking cue from such formulation, Justice Subba Rao used this
doctrine to preserve the constitutional validity of the Constitution
(Seventeenth Amendment) Act, legality of which had been
challenged. He drew protective cover offered by the doctrine over
the impugned amendments while manifestly holding that the
impugned amendments abridged the scope of fundamental
rights. Justifying his stand, he held that:
What then is the effect of our conclusion on the instant case?
Having regard to the history of the amendments, their impact
on the social and economic affairs of our country and the
chaotic situation that may be brought about by the sudden
withdrawal at this stage of the amendments from the
Constitution, we think that considerable judicial restraint is
called for. We, therefore, declare that our decisions will not
affect the validity of the constitution (Seventeenth Amendment)
Act, 1964, or other amendments made to the Constitution
taking away or abridging the fundamental rights. We further
declare that in future Parliament will have no power to amend
Part III of the Constitution so as to take away or abridge the
fundamental rights.
Minority view
The judges who delivered the minority judgment in
the  Golaknath  case dissented with the view of the invocation of the
doctrine of prospective overruling. They seemed to rest their
argument on the traditional  Blackstonian  theory, where they said
that courts declare law and a declaration being the law of the land
takes effect from the date the law comes into force. They further said
that it would be loathsome to change the above principle and
supersede it by the doctrine of prospective overruling. It is submitted
here that the doctrine of prospective overruling in anyway does not
supersede the already existing doctrine but simply tries to enrich the
existing and rather complex practice with regard to the effects of
new judicial decisions, by the adoption of an alternative
discretionary device to be employed in appropriate cases. So, the
basic characteristics of the above doctrine are the flexibility of
content and fitfulness of occurrence.