Shankari Prasad vs Union of India (AIR 1951 SC 455)
Fundamental rights, the basic human rights are enforceable. These fundamental rights are protected by the court of law by issuing writs.
Though under Article 352 and 356, the fundamental rights or some parts of them can be suspended during emergency yet they can be amended by Parliament.
The constitutional validity of first amendment (1951), which curtailed the right to property, was challenged.
The SC ruled out that the power to amend the Constitution under Article 368 also included the power to amend fundamental rights and that the word “law” in Article 13 (8) includes only an ordinary law made in exercise of the legislative powers and does not include Constitutional amendment which is made in exercise of constituent power. Therefore, a Constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.
Article 13 of the original constitution said that the state shall not make any law that takes away or abridges the rights given to the citizens in Part III and any such law made in contravention of this article shall be deemed void to the extent of contravention. Therefore, the parliament cannot amend the constitution in a way that takes away the fundamental rights of the citizens.
In the case of Shankari Prasad vs Union of India, the Supreme Court tested this concept.
It was challenged that Amendment (in this case an amendment to Article 31A and 31B) that take away fundamental right of the citizens is not allowed by article 13. It was argued that “State” includes parliament and “Law” includes Constitutional Amendments.
It was held that ‘Law’ in Article 13 is ordinary law made under the legislative powers. And therefore, the parliament has power to amend the constitution.
The Supreme Court applied the principle of harmonic construction as there is a conflict between Article 368 and Article 13. The provisions of constitution should be interpreted in a manner that they do not conflict with each other and there must be harmony among them.
The further developments:
In the developing stage the total amending power was given by the Indian Judiciary. But later this view was completely changed.
“Whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution”
This question was raised in:
Shankari Prasad v. Union of India,
Sajjan Singh v. State of Rajasthan,
Golak Nath vs. The State of Punjab
Golak Nath vs. The State of Punjab the majority held that:
Article 368 lays down only the procedure to amend. The power to amend comes from the normal legislative power of Parliament. Therefore the amendment which curtails the Fundamental Rights is not valid.
In Kesavananda Bharati v. The State of Kerala, 1973 the Golak Nath case was overruled. It was held that the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
By Priyam Jain
A law to amend the constitution is a law for the purposes of Article 13. Article 13 prevents the passing of laws which “take away or abridge” the Fundamental Rights provisions.