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Amending power of Parliament under Article 368 of the Constitution of India

Nandhini SR ,
  18 June 2020       Share Bookmark

Court :
Supreme Court of India
Brief :
In the instant case though the Court recognised that fundamental rights stand over any other law in India, the judgment was still overruled by the SC in the case of KesavanandaBarathi v. State of Kerala giving rise to the doctrine of basic structure.
Citation :
REFERENCE: 1967 AIR 1643 PARTIES Petitioner:I. C. Golaknath & Ors Respondent: State of Punjab & Anr
  • JUDGMENT SUMMARY:I. C. Golaknath&Ors v. State of Punjab &Anr
  • DATE OF JUDGMENT: 26/02/1967
  • JUDGES: Rao, K. SubbaWanchoo, K.N., Hidayatullah, M. & Shah, J.C., Sikri, S.M. &Bachawat, R.S., Ramaswami, V. &Shelat, J.M., Bhargava, Vishishtha&Mitter, G.K. &Vaidyialingam, C.A.

SUBJECT: 

The judgment revolves around the amending power of Parliament under Article 368 of the Constitution of India.

FACTS: 

A petition was filed in the SC questioning the validity of  Punjab Security of Land  Tenures  Act,1953  (Act  10 of 1953) and of the Mysore Land Reforms Act(Act 10 of 1962) as amended by Act 14 of 1965.  Since the legislations were added to the 9th schedule of the Constitution by the Seventeenth AmendmentAct,1964, the said amendment was also challenged. 

IMPORTANT PROVISIONS:

The Indian Constitution:

Article 32: Remedies for enforcement of rights conferred by Part III

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III

  • Article 368(1):  Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent
  • power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
  • Article 13(2):The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

ISSUES:

  1. Whether the term “law” under Article 13 includes amendments made to the Constitution?
  2. Whether the Parliament has exclusive rights to amend any part of the Constitution?

ANALYSIS OF THE JUDGEMENT:

Though the question “whether the term law under Article 13 includes amendments or not was already addressed in the case of Sankari prasad v. Union of India and Sajjan Singh v. State of Rajasthan it still came up for consideration before a 11 judges constitutional bench of the SC in the instant case.  The petitioners contended that, part III rights are supreme to any other law enacted by the Parliament including amendments, therefore the above stated legislations inserted in the 9th schedule along with the amendment stand unconstitutional.  The respondents contended that, law refers to legislative enactments under Articles 245,246,248 and not those made under Article 368, therefore the amendment stands valid.

Upon hearing the parties to the case,the Court held that, Article 368 merely laid down the procedure in which the legislative power of Parliament under Article 245 has to be exercised. Article 368 alone does not confer any authority over the Parliament therefore all enactments of Parliament falls well within the ambit of the term law under Article 13 and must be in consonance with the fundamental rights of the citizens.

CONCLUSION: 

In the instant case though the Court recognised that fundamental rights stand over any other law in India, the judgment was still overruled by the SC in the case of KesavanandaBarathi v. State of Kerala giving rise to the doctrine of basic structure.  

 
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Published in Constitutional Law
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