I.C. Golaknath and Ors.

vs State of Punjab and

Contents
Facts
Judgement
The Doctrine of Prospective Overruling
Minority view
Significance
See also
Notes
Court Supreme Court of
India
Facts Full case I.C. Golaknath and
name Ors. vs State of
The family of Henry and William Golak Nath held over 500 acres Punjab and Anrs.
of farmland in Jalandhar, Punjab. In the phase of the 1953 Punjab
Security and Land Tenures Act, the state government held that the Decided 27 February 1967
brothers could keep only thirty acres each, a few acres would go to Citation(s) 1967 AIR 1643;
tenants and the rest was declared 'surplus'. This was challenged by 1967 SCR (2) 762
the Golak Nath family in the courts and the case was referred to
Case opinions
the Supreme Court in 1965. The family filed a petition under
Article 32 challenging the 1953 Punjab Act on the ground that it Fundamental Rights cannot be
denied them their constitutional rights to acquire and hold property abridged or taken away by the
and practice any profession (Articles 19(1)(f) and 19(1)(g)) and to amending procedure in Art. 368 of
equality before and equal protection of the law (Article 14). They the Constitution. An amendment to
also sought to have the Seventeenth Amendment – which had the Constitution is 'law' within the
placed the Punjab Act in the Ninth Schedule – declared ultra meaning of Art. 13(2) and is
vires.[2] therefore subject to Part III of the
The issues involved were whether Amendment is a “law” under Constitution.
the meaning of Article 13(3)( a), and whether Fundamental Rights Court membership
can be amended or not. Judges K. Subba Rao (Chief
sitting Justice), K.N
Judgement Wanchoo, M.
Hidayatullah, J.C.
The judgement reversed Supreme Court's earlier decision which Shah, S.M. Sikri,
had upheld Parliament's power to amend all parts of the R.S. Bachawat, V.
Constitution, including Part III related to Fundamental Rights. The Ramaswami, J.M.
judgement left Parliament with no power to curtail Fundamental Shelat, Vishishtha
Rights.[3] Bhargava, G.K.

The Supreme Court, by thin majority of 6:5, held that a Mitter, C.A.
constitutional amendment under Article 368 of the Constitution Vaidyialingam
was an ordinary 'law' within the meaning of Article 13(3) of the Case opinions
Constitution. The majority did not believe there was any difference
Decision by K. Subba Rao (Chief
between ordinary legislative power of the parliament and the
Justice) with J.C.
inherent constituent power of parliament to amend the
Constitution. The majority did not agree with the view that Article Shah, S.M. Sikri,
368 of the Constitution contained "power and procedure" to J.M. Shelat, C.A.
amend, but instead believed that the text of Article 368 only Vaidiyalingam
explained the procedure to amend the constitution, the power Concurrence M. Hidayatullah
being derived from entry 97 of the List I of the VII Schedule to the
Dissent Justices K.N.
Constitution.
Wanchoo, Vishistha
Since according to Article 13(2), the parliament could not make Bhargava and G.K
any law that abridges the Fundamental Rights contained in Part III Mitter (writing
of the Constitution, a constitutional amendment, also being an together); R.S.
ordinary law within the meaning of Article 13, could not be in Bachawat; V.
violation of the fundamental rights chapter contained in the Ramaswami
Constitution of India. Therefore, all constitutional amendments
thus far which were in contravention or which had made an exception to fundamental rights chapter of the
Constitution were said to be void.

The Doctrine of Prospective Overruling

It was in this case that the then Chief Justice Koka Subba Rao had first invoked the doctrine of prospective
overruling. He had taken import from American law where jurists like George F. Canfield, Robert Hill
Freeman, John Henry Wigmore and Benjamin N. Cardozo had considered this doctrine to be an effective
judicial tool. In the words of Canfield, the said expression means:

"........ a court should recognize a duty to announce a new and better rule for future
transactions whenever the court has reached the conviction that an old rule (as
established by the precedents) is unsound even though feeling compelled by stare decisis
to apply the old and condemned rule to the instant case and to transactions which had
already taken place".

Taking cue from such formulation, Justice Subba Rao used this doctrine to preserve the constitutional
validity of the Constitution (Seventeenth Amendment) Act, legality of which had been challenged. He
drew protective cover offered by the doctrine over the impugned amendments while manifestly holding that
the impugned amendments abridged the scope of fundamental rights. Justifying his stand, he held that:

What then is the effect of our conclusion on the instant case? Having regard to the history
of the amendments, their impact on the social and economic affairs of our country and the
chaotic situation that may be brought about by the sudden withdrawal at this stage of the
amendments from the Constitution, we think that considerable judicial restraint is called
for. We, therefore, declare that our decisions will not affect the validity of the constitution
(Seventeenth Amendment) Act, 1964, or other amendments made to the Constitution
 taking away or abridging the fundamental rights. We further declare that in future
Parliament will have no power to amend Part III of the Constitution so as to take away or
abridge the fundamental rights.[4]

Minority view

The judges who delivered the minority judgement in the Golaknath case dissented with the view of the
invocation of the doctrine of prospective overruling. They seemed to rest their argument on the traditional
Blackstonian theory, where they said that courts declare law and a declaration being the law of the land
takes effect from the date the law comes into force. They further said that it would be loathsome to change
the above principle and supersede it by the doctrine of prospective overruling. It is submitted here that the
doctrine of prospective overruling in anyway does not supersede the already existing doctrine but simply
tries to enrich the existing and rather complex practice with regard to the effects of new judicial decisions,
by the adoption of an alternative discretionary device to be employed in appropriate cases. So, the basic
characteristics of the above doctrine are the flexibility of content and fitfulness of occurrence.

Significance
Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court judgement. It amended the
Constitution to provide expressly that Parliament has the power to amend any part of the Constitution
including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to
exclude amendments made under article 368, from article 13's prohibition of any law abridging or taking
away any of the Fundamental Rights.[5]

In 1973, the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala held that the
Parliament under the Indian Constitution is not supreme, in that it cannot change the basic structure of the
constitution.[6] It also declared that in certain circumstances, the amendment of fundamental rights would
affect the basic structure and therefore, would be void. Thus, one can see that this case is drawn on a larger
canvas as compared to that of Golaknath. It also overruled Golaknath and thus, all the previous
amendments which were held valid are now open to be reviewed. They can also be sustained on the
ground that they do not affect the basic structure of the constitution or on the fact that they are reasonable
restrictions on the fundamental rights in public interest. Both the cases, if seen closely, bear the same
practical effects. What Golaknath said was that the Parliament cannot amend so as to take away the
fundamental rights enshrined in Part III, whereas in Keshavananda, it was held that it cannot amend so as
to affect the basic structure.

See also
Indian law
Kesavananda Bharati v. State of Kerala

Notes
1. L. C. Golaknath V. State Of Punjab (http://www.legalserviceindia.com/article/l426-I.-C.-Golak
nath-V.-State-Of-Punjab.html)
2. Austin, Granville (1999). Working a Democratic Constitution - A History of the Indian
Experience (https://archive.org/details/workingdemocrati00aust). New Delhi: Oxford
University Press. pp. 196 (https://archive.org/details/workingdemocrati00aust/page/n112)–
202. ISBN 019565610-5.
 3. G. G. Mirchandani (1 January 1977). Subverting the Constitution (https://books.google.com/b
ooks?id=Xzx0miLvzfsC). Abhinav Publications. p. 182. ISBN 9788170170570. Retrieved
7 December 2013.
4. Prospective Overrulingn - Author - M.V. Pratap Kumar (http://www.legalserviceindia.com/arti
cles/prul.htm)
5. "Constitution Amendment: Nature and Scope of the Amending Process" (https://web.archive.
org/web/20131203013055/http://164.100.47.134/intranet/CAI/1.pdf) (PDF). Lok Sabha
Secretariat. pp. 14–16. Archived from the original (http://164.100.47.134/intranet/CAI/1.pdf)
(PDF) on 3 December 2013. Retrieved 1 December 2013.
6. V. Venkatesan, Revisiting a verdict (http://www.hindu.com/fline/fl2901/stories/201201272901
07100.htm) Frontline (vol. 29 - Issue 01 :: 14–27 January 2012)

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