October 2, 2022

Shankari Prasad Singh Deo v. Union of India- An Analysis

The Shankari Prasad (now overrules) case has an important place in the constitutional history of India. It was the first case that was initiated against the first amendment which added Article 31A, B, to the Constitution.

In original Constitution, under the rainbow of rights in Article 19 and Article 31 Indian citizens also had the ‘right to property’ which was deleted later by 44th constitutional amendment in 1978.

However, after the promulgation of Constitution of India in 1950, this article created problems for the Indian government as she was unable to do any agrarian reforms in the existence of Article 31. Government determined to abolish the ‘Zamindari (landholding) system’ which was the cause of concentration of property to only some people while a larger part of Indian people was landless. 

The judge who wrote this judgment was ‘Justice Patanjali Shastri’, he was also the second Chief Justice of India.

The story

Some petitions were filed against the first constitutional amendment which purports to insert, inter alia, articles 31A and 3lB in the Constitution of India, it was contended that the present amendment is ultra vires and unconstitutional.

What led to that enactment of this amendment was the fact that the political party then in power, commanding as it did a majority of votes in the several State legislatures as well as in Parliament, carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zemindary Abolition Acts.

Certain zemindars, feeling themselves aggrieved, attacked the validity of those Acts in courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution.

  • The High Court at Patna held that the Act passed in Bihar was unconstitutional while
  • the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and, Madhya Pradesh respectively.

Appeals from those decisions were pending in supreme Court. Petitions filed in supreme Court by some other zemindars seeking the determination of the same question were also pending.

At that stage, the Union Government, with a view to put an end to all those litigations and to remedy what they considered to be certain defects brought to light in the working of the Constitution, brought forward a bill to amend the Constitution, which, after undergoing amendments in various particulars, was passed by the requisite majority as the Constitution (First Amendment) Act, 1951.

Swiftly reacting to this move of the Government, the zemindars brought the petitions under article 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void.

Some important provision dealing with the case

Before reading further, it is expedient to understand the meaning of some provisions which were the cause of discussion in the present case.

Article 13

13. Laws inconsistent with or in derogation of the fundamental rights

(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.

Article 368

The main contention was that parliament do not have power through article 368 to amend the constitution.

“368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change

(a) articles 54, 55, 78,162 or 241, or

(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

(c) any of the Lists in the Seventh Schedule, or

(d) the representation of States in Parliament, or

(e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.”

Article 379

This article is now deleted was provided that,

“379. (1) Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately ‘before the commencement of this’ Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament.”

This article gave the authority to constitution assembly to work as parliament until members of both houses of parliament are not elected through general election. This article served its purpose after first general election so now it has been deleted.

Article 392

392. (1) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient:

Provided that no such order shall be made after the first meeting of Parliament duly constituted under Chapter II of Part V.

Arguments on behalf of Petitioners and answers of the Court to the Contention

Provisional Parliament has no power to amend the constitution

The contention was that the Article 368 vests the power to amend the Constitution not in the Parliament but in a different body, viz., a two-thirds majority of the two Houses of the Parliament. In article 368, the word Parliament which occurs in other articles is purposely avoided.

Article 379 speaks of the power of the provisional Parliament as a legislative body. The powers under article 368 cannot be and was not intended to be exercised by the provisional Parliament under article 379. As it consists only of a Single Chamber the adaptations made in article 368 by the Constitution.

In answer of this argument, supreme court said, Parliament effects amendments of the first class mentioned above by going through the same three-fold procedure but with a simple majority. The fact that a different majority in the same body is required for effecting the second and third categories of amendments cannot make the amending agency a different body. There is no force, therefore, in the suggestion that Parliament would have been referred to specifically if that body was intended to exercise the power.

Having mentioned each House of Parliament and the President separately and assigned to each its appropriate part in bringing about constitutional changes, the makers of the Constitution presumably did not think it necessary to refer to the collective designation of the three units.

The argument that a power entrusted to a Parliament consisting two Houses cannot be exercised under article 379 by the provisional Parliament sitting as a single chamber overlooks the scheme of the constitutional provisions in regard to Parliament.

Article 379 should be viewed and interpreted in the wider perspective of this scheme and not in its isolated relation to article 368 alone. The petitioners’ argument that the reference in article 368 to “two Houses” makes that provision inapplicable to the provisional Parliament would equally apply to all the provisions of the Constitution in regard to Parliamentary action and, if accepted, would rob article 379 of its very purpose and meaning. It was precisely to obviate such an argument and to remove the difficulty on which it is rounded and other difficulties of a like nature in working the Constitution during the transitional period that the framers of the Constitution made the further provision in article 392 conferring a general power on the President to adapt the provisions of the’ Constitution by suitably modifying their terms.

Power to remove difficulties

The contention was that article 392 gives power to the President to remove only such difficulties as arise in the working of the Constitution. It cannot be used to remove difficulties in the way of amending the Constitution that have been deliberately introduced by the Constitution. No difficulty could have been possibly experienced in the working of the Constitution on the very day the Constitution came into force.

The Constitution could legally be amended only by the Parliament consisting of two Houses constituted under clause 2 of Part V.

Answer– Difficulties are bound to arise in applying provisions, which, by their terms are applicable to a Parliament of two Houses to the provisional Parliament sitting as a single chamber. Those difficulties, arising as they do out of the inappropriateness of the language of those provisions as applied to the provisional Parliament, have to be removed by modifying that language to fit in with the situation created by article 379.

The passing of an amendment bill by both Houses is no more a special requirement of such a bill than it is of any ordinary law made by Parliament. We are, therefore, of opinion that the adaptation of article 368 by the President was well within the powers conferred on him and is valid and constitutional.

Article 368 is a complete code itself

Contention- Article 368 of the Constitution is a complete code in itself. It does not contemplate any amendments to the Bill after its introduction. The Bill must be passed and assented to by the President as it was introduced without any amendment. As the Constitution Amendment Bill was amended in several respects during its passage through the Parliament, the Constitution (First Amendment) Act was not passed in conformity with the procedure laid down in article 368 and is therefore invalid.

Article 368 does not confer power on anybody to amend the constitution. It simply lays down the procedure to be followed for amending the Constitution.

Answer of the court- It is not correct to say that article 368 is a “complete code” in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President’s assent is to be obtained. Evidently, the rules made by each House under article 118 for regulating its procedure and the conduct of its business were intended, so far as may be, to be applicable.

When Parliament is dealing with a bill under article 368, there is no obvious reason why Parliament should not adopt, on such occasions, its own normal procedure, so far as that procedure can be followed consistently with statutory requirements.

Act is void under 13(2)

Contention-  In any event, the impugned Act is void under article 13 (2) as contravening the provisions relating to fundamental rights guaranteed by Part III. ‘ Law ‘ in article 13 (2) evidently includes all laws passed by the Parliament and must include laws passed under article 368 amending the Constitution.

Answer- Article 13 “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13(2) does not affect amendments made under article 368.

Article 31(A) (B) are unconstitutional

Contention- as the newly inserted articles 31A and 3lB seek to make changes in articles 132 and 136 in Chapter IV of Part V and article 226 in Chapter V of Part VI, they require ratification under clause (b) of the proviso to article 368, and not having been so ratified, they are void and unconstitutional. They are also ultra vires as they relate to matters enumerated in List II, with respect to which the State legislatures and not Parliament have the power to make laws.

Answer- Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 13 read with other relevant articles in Part III, while article 3lB purports to validate certain specified Acts and-Regulations already passed, which, but for such a provision, would be liable to be impugned under article 13.

The new articles being thus essentially amendments of the Constitution, Parliament alone had the power of enacting them. That the laws thus saved relate to matters covered by List II does not in any way affect the position.

Overruled

This case was overruled in Golaknath v. Union of India, 1967 by holding that the Fundamental Rights were non-amendable through the constitutional amending procedure set out in Art. 368.

Reference

Sri Sankari Prasad Singh Deo vs Union Of India; 1951 AIR 458, 1952 SCR 89