By Shreya C Shetty, B.A. LLB (Hons.)
SDM Law College
The constitution of India is one of the most fascinating and largest written constitutions in the world. It consists of a preamble, fundamental rights, fundamental duties, and directive principles of state policy. One of the striking features of our constitution is its flexibility. The makers of the constitution have inserted Article 368 which provides power to the Parliament to amend the provisions of the constitution to adapt to the changing needs of the society. If the parliament is given absolute power to amend the constitution, the rights of the people can be jeopardized. Therefore, the constitution puts certain restrictions on the constituent power of the parliament. This topic is further discussed in various landmark cases giving rise to the Basic Structure Doctrine. Let us analyze the case of Shankari Prasad v Union of India in answering the questions of the amending power of the constitution.
Within a year of the constitution coming into force, the question came before the Supreme court, if the parliament was competent to amend the fundamental rights. The validity of the First Constitutional Amendment Act (1951) was challenged in the Shankari Prasad case. By this amendment, the Parliament inserted Article 31A and Article 31B which helped in abolishing the Zamindari system. The Zamindari system was introduced under the land revenue system during British rule where the Zamindars owned and possessed rights of sale and purchase of land. They collected rent from the peasants which lead to frequent exploitation and poor condition of these peasants. After independence, attempts were made to abolish this system under the agrarian land reforms. In the states of Bihar, Uttar Pradesh, and Madhya Pradesh, the zamindari abolition act was passed.
In this case, The Zamindari Abolition Act was challenged by the petitioner along with other zamindars registered under this act, whose land was taken away by the government. They contended that the above act violated their fundamental right to hold property as provided in Article 19 and Article 31 of the Indian Constitution. The Patna High Court declared Bihar Land Reforms Act 1950 as unconstitutional whereas the High courts at Allahabad and Nagpur upheld the constitutionality of the legislation in Uttar Pradesh and Madhya Pradesh.
Due to the difference in opinion of these High Courts and several litigations concerning the same issue, the Government passed the First Constitutional Amendment Act (1951). Swiftly reacting to this move of the government, the zamindars exercised their right to constitutional remedies under Article 32 and questioned its validity.
- Whether the First Constitutional Amendment 1951 passed by the parliament which inserted Article 31A and 31B is valid?
- Whether the fundamental rights provided in part III of the constitution can be amended by the parliament under Article 368?
- Whether the word ‘law’ used in Article 13 also includes the constitutional amendment acts (constituent laws)?
Legal provisions 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
Arguments advanced from the Petitioner’s side are summarised as follows:
- Firstly, they contended that the provisional Parliament was incompetent to amend the constitution under Article 368 since this power is conferred on the two houses of the parliament as a designated body.
Further, they added that the power conferred by Article 368 calls for a co-operative action by the two houses of the Parliament. This could be duly operated by the parliament which is constituted under Chapter II of Part V.
- Secondly, it was argued that the Constitution (Removal of Difficulties) Order No 2 made by the President was beyond the powers conferred to him under Article 392. Under this Article, the President could remove only those difficulties by adaptation which hindered the working of the constitution and government. However, it was said that no such difficulties were observed on the day when the constitution commenced.
- Thirdly, it was argued that Article 368 was a complete code in itself and did not require amendments made in the bill after being introduced in the house. Since several amendments were made to this bill during its passage, it violates the prescribed procedure as mentioned in Article 368.
- Fourthly, the First Constitutional Amendment Act (1951) by inserting Article 31A and Article 31B violated the fundamental right as given in Part III. It falls within the prohibition of Article 13(2) and hence it is invalid.
- Fifthly, the Amendment makes changes in Article 132 and 136 of Chapter IV of Part V and Article 226 of Chapter V of Part VI. Thus, it needs to be ratified as per clause(b) of Article 368. By not conforming to the above requirement, it is unconstitutional.
- In addition to this, it was argued that it was the state legislatures and not the Parliament which can make laws in the matters that fall within List II of the Seventh Schedule.
Arguments advanced from the Respondent’s side are summarised as follows:
- It was argued that the framers of the constitution by giving three different class of amendments in Article 368, intended to prevent frequent changes to the constitution according to the whim of the government. The three class of amendments are as follows:
- It includes those affected by a bare majority for the passing of ordinary law.
- It includes those affected by the special majority under Article 368.
- It includes those affected by ratification by one-half of the state legislatures in addition to a special majority.
- The above-mentioned amendment belongs to the third class. By examining the language used in Article 368, it is clear that the power to amend the constitution is given to the Parliament in all three classes. The difference lies only in the procedure of amendment and not in the body entrusted with such power.
- They countered the petitioner’s argument by stating that it is incorrect to consider Article 368 as a complete code in itself. There were certain procedural inconsistencies as to how and after what notice a bill is to be introduced, how it is to be passed in each house of the Parliament, and how to obtain the President’s assent.
- Further, it was argued that if the petitioner’s argument, that the reference to the ‘two houses’ mentioned in Article 368 makes it inapplicable to provisional parliament, if accepted, can take away the very purpose of Article 379.
- They contended that the word ‘law’ in Article 13(2) includes only ordinary law and not the constitutional amendments. By drawing a clear line of distinction between the two, it becomes evident that Article 13(2) does not affect the amendment made under Article 368.
- Lastly, they stated that the newly inserted Article 31A and Article 31B seeks to save a certain class of laws from the operation of Article 13 read with relevant articles in Part III. They do not alter Article 132 and 136 or Article 226. Thus, the parliament was competent in passing the amendment and the subject matter falls within the purview of the legislature.
The case was heard before the Supreme Court by a five-judge Bench wherein the judgement was delivered by the Hon’ble Judge M Patanjali Sastri. The court upheld the validity of the First Constitutional Amendment Act (1951) and thereby dismissed the petition. It ruled that the word ‘law’ in Article 13(2) includes only ordinary laws and not constituent laws. Thus, the amendment made under Article 368 is not affected by Article 13(2). It also held that the power of the Parliament to amend the constitution under Article 368 also includes the power to amend Fundamental Rights. Therefore, any constitutional amendment enacted by the Parliament which abridges the Fundamental Rights will not be void under Article 13.
However, the same question came before the Supreme Court in future cases, some of them upheld it, while the others overruled the decision of this case.
In this case, there was a conflict in the operation of Article 368 and Article 13 of the Indian constitution. Hence the court applied Harmonious construction to prevent the conflict between the two articles. It also laid down that the Parliament enjoys two different types of power namely; the ordinary legislative power and constitutional legislative power. The court observed that “We are of 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.” By delivering this Judgement, the court has narrowed the scope of Article 13 and widened the power of Parliament to amend the Constitution. The parliament was given unfettered power to amend the constitution which also includes taking away the Fundamental Rights of the Constitution.
The Doctrine of Basic structure which was adopted much later in the Keshavananda Bharati case should have been adopted in this case. It is a well-established doctrine wherein the rights of the citizens and the basic features of the constitution are protected. Justice Mudholkar in his dissenting opinion says, “It is also a matter for consideration whether making a change in a basic feature of the constitution can be regarded merely as an amendment or would it be in effect, rewriting a part of the constitution; and if the latter, would it be within the purview of Article 368?”
The court has applied literal interpretation and read the text of the constitution as it is without applying any legal reasoning. This led to ambiguity on those provisions which are silent on certain aspects. For example, by including only ordinary laws under Article 13(2), it has given absolute power to the Parliament to amend the constitution and broadened the scope of Article 368.
However, the above decision was overruled in the case of I.C Golaknath vs. the State of Punjab. In this case, the court held that there was no difference between the ordinary legislative power and constituent power. Further, it said that Article 368 gives only the procedure to amend, the power to amend comes from the ordinary legislative power of the Parliament.
The case of Shankari Prasad v Union of India has played an important role in the development of the interpretation of the constitution. It was in this case that the court discussed and gave its opinion on the competency of the Parliament to amend the Fundamental Rights. The Supreme court reversed its earlier stand in the Golak Nath case (1967). This was further overruled in the Kesavananda Bharati case and the court laid down the doctrine of the Basic structure. Thus, Shankari Prasad vs. Union of India has indirectly contributed to the creation of the Basic structure doctrine, which protects the basic features of the constitution from being amended. The court, by interpreting the meaning of Article 13 in this case, has given scope for correcting the ambiguities in this provision. It has further helped in widening the objectives of Article 13 and Article 368. This has led to a better interpretation of these articles in various cases. In a nutshell, the role played by the Shankari Prasad case is crucial in the understanding of the development of the constitution and the concept of the amendment.
- Shankari Prasad v Union of India, AIR 1951 SC 458
- Golaknath v State of Punjab, AIR 1967 SC 1643
- Keshavananda Bharti v State of Kerala, AIR 1973 SC 1461