Quick answer
Yes, according to Sajjan Singh v. State of Rajasthan (decided 30 October 1964). A five-judge bench of the Supreme Court upheld the Constitution (Seventeenth Amendment) Act, 1964, which widened the land-reform protection in Article 31A and added 44 State Acts to the Ninth Schedule. The majority followed Sankari Prasad (1951) and held that a constitutional amendment made under Article 368 is not "law" under Article 13(2), so it can take away or abridge fundamental rights. Two judges, Hidayatullah and Mudholkar, JJ., agreed with the result but doubted that reasoning. Their doubts later led to the basic structure doctrine.
The case
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845; 1965 SCR (1) 933. Supreme Court of India, 30 October 1964. Bench: P.B. Gajendragadkar, C.J., K.N. Wanchoo, M. Hidayatullah, Raghubar Dayal and J.R. Mudholkar, JJ. Six writ petitions under Article 32 challenged the Seventeenth Amendment. All five judges dismissed the petitions. The lead judgment of Gajendragadkar, C.J. was joined by Wanchoo and Raghubar Dayal, JJ. (a 3:2 split on the reasoning). Hidayatullah and Mudholkar, JJ. wrote separate opinions.
What the Seventeenth Amendment did
- It gave "estate" in Article 31A(2)(a) a wider meaning, covering jagirs, inams, ryotwari land and other agricultural land.
- It added a proviso to Article 31A(1). Under it, land under personal cultivation that is within the ceiling limit can be acquired only on payment of at least its market value.
- It placed 44 State Acts in the Ninth Schedule. Under Article 31B, those Acts cannot be challenged for violating Part III (fundamental rights).
What the majority held
- Article 368 covers fundamental rights: the power to "amend" extends to every part of the Constitution, including Part III.
- Article 13(2) does not apply: "law" in Article 13(2) means ordinary legislation, not an amendment made under Article 368. The Court declined to reconsider Sankari Prasad.
- No State ratification needed: the amendment affected the High Courts' power under Article 226 only incidentally. Its pith and substance (true nature) was the amendment of fundamental rights to carry out land reform, so the proviso to Article 368, which requires ratification by half the States, did not apply.
The warning in the separate opinions
Hidayatullah, J. said he had difficulty with part of the reasoning in Sankari Prasad and reserved his opinion on whether "law" in Article 13(2) covers amendments. He said it was difficult to think that the assurances in Part III were "the play things of a special majority". Mudholkar, J. asked whether fundamental rights are lasting guarantees that the people reserved for themselves. He also asked whether changing a "basic feature of the Constitution" would be a real amendment or a rewriting of the Constitution. He said these questions needed further consideration. This opinion is commonly treated as the first seed of the basic structure doctrine.
How the law moved on
| Case | Can an amendment abridge fundamental rights? |
|---|---|
| Sankari Prasad (1951) | Yes. An amendment is not "law" under Article 13(2). |
| Sajjan Singh (1964) | Yes, following Sankari Prasad; two judges expressed doubts. |
| I.C. Golak Nath (27 February 1967, 11 judges, 6:5) | No. An amendment is "law" under Article 13. Sankari Prasad and Sajjan Singh overruled. |
| Kesavananda Bharati (24 April 1973, 13 judges, 7:6) | Yes, but Article 368 does not allow Parliament to alter the basic structure. Golak Nath overruled. |
In between, the Constitution (Twenty-fourth Amendment) Act, 1971 inserted Article 13(4) and Article 368(3). Both say that Article 13 does not apply to amendments made under Article 368. For the case that reversed Sajjan Singh, see I.C. Golaknath v. State of Punjab. For the final position, see Kesavananda Bharati v. State of Kerala.
Example
Farhan's ceiling-surplus land is taken under a State land reform Act. In 1964 the Seventeenth Amendment places that Act in the Ninth Schedule. Farhan argues that the amendment itself violates Article 13(2). Under Sajjan Singh, the argument fails, because an amendment is not "law" under Article 13(2).
Exam point
Sajjan Singh (1964) upheld the Seventeenth Amendment and followed Sankari Prasad by a 3:2 split on reasoning. Mudholkar, J.'s question about the "basic features" of the Constitution is the starting point of the basic structure doctrine. Golak Nath overruled the case in 1967.
