Golaknath Case. Facts. The immediate facts of the case were that the family of one William Golak Nath had over acres of property in. In the famous case of Golaknath V. State of Punjab, in the year the Court ruled that Parliament could not curtail any of the Fundamental Rights in the. ; posts about Golaknath case which continued to create history of Indian Judiciary. This is case.

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It is not that Fundamental Rights are not subject to any change or modification. Articles 32, and are designedly made comprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do complete justice.

The Commissioner of Income-tax, Delhi and Rajasthan 5. In short, the majority, speaking through Gajendragadkar, C. The Man, The Times and Sikhs: The argument that the completion of the procedural AM culminates in the exercise of the power to amend may be subtle but does not carry conviction. It does not do away with the doctrine of stare decisis, but confines it to past transactions. Rana, for Intervener No. We repeat that we must look at the quality and nature of what is done under Art.

These two clauses of Art. If amendment is intended to be Something other than law the constitutional insistence on the said legislative process is unnecessary. Besides forming coalition governments in several states, and the weakening political and moral authority of Congress, Gandhi was caught in a bitter power struggle within her party. The power of amendment is in point of quality an adjunct of sovereignty.

The fourth method is generally by creation of a special body ad hoc for the purpose of constitution revision as in Latin America. Nayyar, for Respondent No. Lastly as to the argument of fear it is urged that there is always a provision with respect to amendment in written federal Constitutions.

Therefore, the minority granted complete autonomy to parliament. This case has reaffirmed the doctrine of prospective overruling and has taken a pragmatic approach in refusing to give it retroactivity. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds the law and that it does make law It finds law but restricts its operation to the future.


Several members of this government — and the previous one s — nurse a grouse that the judiciary habitually appropriates powers of executive. We have already seen that Parliament effects amendments of the first class mentioned above by going through the same three-fold procedure but with a simple majority.

Let us now consider some of the objections to this doctrine. State of Maharashtra [] 3 S. In the premises, an amendment “Of the Constitution can be nothing but “law”. Learned and lengthy arguments are advanced to sustain it or to reject it.

L. C. Golaknath v/s State of Punjab – Initial stage of Judicial Activism

This makes our Constitution unique and the American or other foreign precedents cannot be of much assistance. Moreover residuary power cannot be used to change the fundamental law of the Constitution because all legislation is under Art.

WaiteCal. Particularly the difference can be traced to the “spirit and genius of the nation in which a particular constitution has its birth”. It cannot therefore be said that if the power of amendment is held to be a legislative power the President acting under Art. The adjustment between freedom and compulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing golaknathh and conditions. It is conceded that there may be golaonath express limitation caxe merely in the Golaknatb providing for amendment, but in some other part of the Constitution.

The residuary power of Parliament, unles there is anything contrary in the ,Constitution, certainly takes in the power to amend the Constitution. Such considerations are out of place in construing the provisions of the Constitution by a Court of law. There is an essential distinction between Constitution and statutes. The details of procedure in respect of other bills have to be followed so far as possible in respect of a Bill under Art.

On September 18, Dr. The marginal note to Art.


Past Continuous: Two Judgements That Held the Constitution Above Parliament

To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective the powerful instrument of. L agreed that no case had been made, out for reviewing the earlier decision and practically accepted the reasons given in the-earlier decision. Pudissery, for Intervener No. The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. Indeed, a Constitution is only permanent and not eternal.

If the fundamentals would be amenable to the ordinary process of amendment with a special majority, the argument proceeds, the institutions of the President can be abolished, the parliamentary executive can be removed, the fundamental rights can caxe abrogated, the concept of federalism’ can be obliterated and in short the sovereign democratic republic can be converted into a totalitarian system of government.

It will mean that ordinary legislation passed under fundamental law would amend that law and this cannot be done unless there gloaknath express provision as in Art. Our Constitution does not expressly or by necessary implica- tion speak against the doctrine of prospective over-ruling.

These proceedings settled that the parliament is the creature of the constitution and not the other way cade. 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. While the former waived off applicability of the article to amendments made in the latter, Articlein its golaknatth form, provided power to the parliament to amend any part of the constitution.

He also brought out other defects in the line of reasoning adopted in Sankari Prasad’s case 1.