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, 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, this article created problems for the Indian government as it 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 a big amount of property to only some people while a larger part of Indian people was landless.
The judge who wrote this judgment was ‘Patanjali Shastri’, he was also the second Chief Justice of India.
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.
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.
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.”
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.
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
The main arguments advanced in support of the petitions may be summarised as follows:
First, 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.
There is a distinction between ordinary legislative power and power to amend the Constitution. This distinction is observed in America and the power to amend the Constitution is vested there also in a different body.
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 Parlia- ment under article 379. As it consists only of a Single Chamber the adaptations made in article 368 by the Constitution.
Secondly, 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.
Fourthly, 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.
Fifthly, 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.
Sixthly, 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.
And lastly, 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.
Arguments on behalf of Government
- The donee of the power under article 368 is Parliament and the process of the passage of the Bill indicated in the said article is the same as that of ordinary legislative Bills. The article does not mean that the powers under article 368 are to be exercised by a fluctuating body of varying majority and not by Parliament.
- If the constituent authority and the legislative authority are two different entities the saving clauses in articles 2,3, 4 and 240, will be meaningless.
- Under article 379 provisional Parliament can exercise all the powers of Parliament; hence Provisional Parliament can act under article 368. “All the powers” in article 379 include power to amend the Constitution and there is no reason to restrict the import of these words by excluding amendment of the Constitution from their ambit. The words “perform all the duties” in that article do not in any manner cut down the power of Parliament under article 379 because article 13 (2) does not impose any duty. There is no conflict between exercising all the powers under article 379 and the prohibition in article 13 (2).
- No technical meaning should be given to the word “difficulty” in article 392 (1). The adaptation of article 368 is really an adaptation for the removal of difficulties. The adaptation is not of a permanent character. This shows that the adaptation is not an amendment and even if it is an amendment, it is so by way of adaptation.
- Article 13 (2) prohibits “laws” inconsistent with fundamental rights. It cannot affect article 368 since the word “law” in article 13 (2) refers to ordinary legislative enactments and not constitution making.
- The argument that the Bill to amend the Constitution should be passed as introduced, without amendments, is fallacious. It cannot be said that the Bill referred to in article 368 has to be dealt with under a procedure different from that laid down for ordinary Bills in articles 107 and 108. Articles 31-A and 31B are not legislative in character. The said articles do not affect the scope of articles 226 and 32, for the power of the Court under the said two articles remains unaltered. What has been done is to alter the content of fundamental rights.
The decision of the court
Adopting the literal interpretation of the Constitution, the Supreme Court upheld the validity of the First 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.
Thus, the Court held that the terms of Art. 368 are perfectly general and empower Parliament to amend the Constitution without any exception. The Court insisted that 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.
However, 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.
Sri Sankari Prasad Singh Deo vs Union Of India; 1951 AIR 458, 1952 SCR 89