Case Details 

Citation	:	1951 SCR 89: AIR 1951 SC 458
Court	:	Hon’ble Supreme Court of India
Decided on	:	October 5, 1951
Petitioner	:	Sri Shankari Prasad Singh Deo
Respondents	:	Union of India and State of Bihar (and Others)
Corum	:	Constitutional Bench (Hiralal Kania CJ and M. Patanjali Sastri, B.K. Mukherjee and S.R.Das and Chandrasekhara Aiyar, JJ.)

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. 

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.

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.

Argument Advanced

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 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.

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.

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.

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.

I.C. Golaknath v State of Punjab was overruled

The Supreme Court in the Keshavananda Bharti v State of Kerala overruled the Golaknath case. The court held that the inherent limitation of the power of Parliament in regards to amendment and Article 368 does not confer any power to destroy the Basic Structure of the Constitution.

EndNote

1. Shankari Prasad v Union of India, AIR 1951 SC 458.
2. Sajjan Singh v State of Rajasthan, AIR 1965 SC 845.
3. Golaknath v State of Punjab, AIR 1967 SC 1643.
4. Keshavananda Bharti v State of Kerala, AIR 1973 SC 1461.