Quick answer
In I.C. Golaknath v. State of Punjab (27 February 1967), an eleven-judge bench of the Supreme Court held by a 6:5 majority that Parliament could not amend the Constitution to take away or abridge the fundamental rights in Part III, because a constitutional amendment was "law" under Article 13(2). Using prospective overruling, the Court left earlier amendments valid. Parliament answered with the Constitution (Twenty-fourth Amendment) Act, 1971, and in Kesavananda Bharati (1973) the Supreme Court rejected the Golaknath view. Today Parliament can amend fundamental rights, but it cannot destroy the basic structure of the Constitution.
The case
I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643, (1967) 2 SCR 762, Supreme Court of India, 27 February 1967. Eleven judges. The majority was K. Subba Rao, CJ (for himself and Shah, Sikri, Shelat and Vaidialingam, JJ.), with Hidayatullah, J. agreeing in a separate opinion. Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. dissented. The family of Henry Golak Nath had land declared surplus under the Punjab Security of Land Tenures Act, 1953. They challenged that Act and the First, Fourth and Seventeenth Amendments, which protected such land laws.
What the majority held
- Amendment is "law": a constitutional amendment is "law" under Article 13(2). If it takes away or abridges a fundamental right, it is void.
- Source of the power: the leading majority said Article 368 (as it then stood) laid down only the procedure. The power to amend came from Articles 245, 246 and 248 read with Entry 97 of List I (the residuary power).
- Earlier cases overruled: the contrary view in Sankari Prasad (1951) and Sajjan Singh (1965) was rejected.
- Prospective overruling: this doctrine (applying a new rule only to the future) was used for the first time in India. The First, Fourth and Seventeenth Amendments stayed valid. From the date of the judgment, Parliament had no power to amend Part III so as to take away or abridge fundamental rights.
Parliament's response: the Twenty-fourth Amendment, 1971
The Statement of Objects and Reasons of the Constitution (Twenty-fourth Amendment) Act, 1971 refers directly to Golaknath. The Act, in force from 5 November 1971:
- inserted Article 13(4): nothing in Article 13 applies to an amendment made under Article 368;
- inserted Article 368(1), declaring that Parliament may, in exercise of its constituent power, amend any provision of the Constitution by addition, variation or repeal;
- inserted Article 368(3), repeating that nothing in Article 13 applies to an amendment made under Article 368; and
- made it compulsory for the President to give assent to a duly passed amendment Bill.
Golaknath and Kesavananda Bharati compared
| Point | Golaknath (1967) | Kesavananda Bharati (1973) |
|---|---|---|
| Bench | 11 judges, 6:5 | 13 judges |
| Is an amendment "law" under Article 13(2)? | Yes | No |
| Can fundamental rights be amended? | No, they cannot be taken away or abridged | Yes, Parliament can amend every Article |
| Limit on the amending power | Part III as a whole | Basic structure (by a 7:6 majority) |
| Twenty-fourth Amendment | Not yet made | Held valid |
Suppose that in 1969 Parliament passed an amendment reducing a right under Article 19. Under Golaknath, Farhan could have challenged it as void under Article 13(2). After the Twenty-fourth Amendment and Kesavananda Bharati, the same challenge would succeed only if Farhan showed that the amendment damaged the basic structure of the Constitution.
Current position
Golaknath is no longer good law on the amending power. In Kesavananda Bharati v. State of Kerala (24 April 1973), the judges in the majority found the Golaknath view incorrect and upheld the Twenty-fourth Amendment. The majority also held that Article 368 does not allow Parliament to alter the basic structure of the Constitution. Golaknath is still studied for two things: it led to the basic structure debate, and it introduced prospective overruling into Indian law. See the Law Easy note on Kesavananda Bharati v. State of Kerala.
Exam point
Golaknath (1967, 6:5): an amendment is "law" under Article 13(2), so fundamental rights could not be abridged, but only prospectively. This was reversed by the Twenty-fourth Amendment (1971, Articles 13(4) and 368(1)) and by Kesavananda Bharati (1973). Fundamental rights can be amended, but the basic structure cannot be destroyed.
