Scroll Top


The question before the Supreme Court was a challenge to the constitutional validity of an Act gone by the legislature removing the elemental rights in an estate.

Golak nath

(Overruled by Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461)


The question before the Supreme Court was a challenge to the constitutional validity of an Act gone by the legislature removing the elemental rights in an estate. The precise issue was whether any a part of the elemental rights guaranteed by the Constitution might be abrogated or changed by a constitutional amendment albeit it had been gone by the requisite two-thirds majority of Parliament, as provided for in Article 368. Earlier, in Sankari Prasad Singh v. Union of India (AIR 1951 SC 458) a Constitutional Bench of 5 Judges had unanimously held that Parliament had unfettered power to amend the Constitution and in Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845), the Court had upheld the facility of Parliament to amend any a part of the Constitution including one affecting the elemental rights of citizens. The law in question within the instant case within sight of reforming land ownership and tenancy structures, implementing the socialistic goals of the Constitution ( Article 39 ( b) and ( c) of the Directive Principles of State Policy) that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth within the hands of a couple of. This was against the elemental right to acquire hold and eliminate property (Article 19(f)) and Article 31 wherein one couldn’t be bereft of his property unless it had been acquired by the State and for public purposes only, upon payment of compensation determined by the law.


Presided over by Judge Subba Rao, this 11-judge bench by 6:5 majority held that the fundamental rights weren’t amenable to the amending power under Article 368. The Court held that Article 368, which contained provisions concerning the amendment of the Constitution, merely laid down the amending procedure. It didn’t confer upon the Parliament the facility to amend the Constitution. The amending power (or the constituent power) of Parliament arose from other provisions contained within the Constitution (i.e. Articles 245, 246, and 248) which gave it the facility to form laws (i.e. plenary legislative power) only. Thus, the Apex court held that the amending power and legislative powers of Parliament were essentially an equivalent. Therefore, any amendment of the Constitution was deemed to be law as understood in Article 13 (2) and consequently was to be struck down it violative of fundamental rights.


The judgment invoked the concept of implied limitations on Parliament’s power to amend the Constitution. The Court held that the Constitution provides a place of permanence to the elemental freedoms of the citizen; in giving the Constitution to themselves, the people had reserved the fundamental rights for themselves. Another aspect of the judgment is that it introduced in India the doctrine of prospective overruling wherein, to not disturb the hitherto concluded transactions under previously invalid laws, all invalidations would be operative from the future. Therefore, the Court declared that henceforth all laws violative of fundamental rights would be void initially.

Author(s) Name: Kanak Patidar (Symbiosis Law School, Nagpur)