Examine the significance of the verdicts of the Supreme Court in the Golaknath and Kashavananda Bharati cases for an understanding of the scope of Article 368 in regard to Fundamental Rights. (2013, 20 Marks)
Article 368 as enacted prescribed a procedure for amendment but said nothing about limits, while Article 13(2) voided any “law” abridging fundamental rights. Whether an amendment was such a “law” decided whether Part III could be changed at all. Golaknath (1967) and Kesavananda Bharati (1973) gave opposite answers, and the second produced the settlement that still governs.
From Unlimited Power to Contest
| Stage | Holding on Article 368 and Part III |
|---|---|
| Shankari Prasad (1951) | Unanimous: an amendment is constituent, not legislative, so not “law” under Article 13; rights fully amendable |
| Sajjan Singh (1965) | Majority reaffirmed this, but Justices M. Hidayatullah and J. R. Mudholkar doubted whether rights could be a plaything of special majorities or basic features be changed |
| Golaknath (1967) | 6:5: rights beyond amendment |
| 24th Amendment (1971) | Article 13 excluded from amendments; Article 368 retitled a “power” |
| Kesavananda (1973) | 7:6: rights amendable, basic structure not |
Golaknath: Rights as a Limit
An eleven-judge bench under Chief Justice K. Subba Rao, deciding a Punjab land-ceiling challenge, held by 6:5 on 27 February 1967 that:
- the leading opinion held that Article 368 contained only procedure; the power to amend came from Parliament’s residuary legislative power, so an amendment was “law” within Article 13(2);
- fundamental rights held a transcendental place, and Parliament could not take away or abridge them; a new constituent assembly would be needed;
- by prospective overruling, the First, Fourth and Seventeenth Amendments stood.
Its significance was to treat Part III, for the first time, as a substantive limit on the amending power, with the Court as its guardian. Its weakness was rigidity: freezing the whole chapter, including property, made redistribution under the Directive Principles hostage to Article 31. After the 1971 election the 24th and 25th Amendments reversed it.
Kesavananda: Structure as the Limit
- Golaknath overruled: Article 368 contains the power itself, and an amendment is not “law” under Article 13; any right may be amended.
- The 24th Amendment was upheld; so was the first limb of Article 31C, letting laws for Articles 39(b)–(c) prevail over Articles 14, 19 and 31.
- But “amendment” presupposes that the Constitution survives, so Parliament cannot damage its basic structure. H. R. Khanna, whose vote made the majority, placed property outside that core.
- The second limb of Article 31C, barring courts from testing the declaration, fell: review cannot be excluded by label.
What Changed for Fundamental Rights
The question moved from whether a right is touched to whether the core is destroyed.
- Minerva Mills (1980) struck down the 42nd Amendment’s extension of Article 31C to all directives, holding the balance between Parts III and IV basic.
- I. R. Coelho (2007) tested post-1973 Ninth Schedule laws by the essence of rights, anchored in Articles 14, 19 and 21.
- The right to property, deleted by the 44th Amendment (1978), showed that a right can go while the structure stays.
- Janhit Abhiyan (2022) examined the 103rd Amendment against the equality code: the majority upheld EWS reservation; the dissent found excluding poor SC, ST and OBC families destructive of it. The standard is shared; its application is contested.
Limits of the Settlement
Granville Austin, Working a Democratic Constitution (1999), reads the sequence as a struggle between the social revolution and rights, which Kesavananda resolved by making the Court the arbiter of both. That is the objection too: the core of a right is whatever a bench finds it to be, and a one-vote majority settled it.
Conclusion
Golaknath put the right question and gave an unworkable answer; Kesavananda kept the question and changed the unit of protection from each right to the structure of rights. Article 368 now reaches every fundamental right, but not the liberal-democratic core those rights express.