August 3, 2021

Case Brief: Golak Nath v. State of Punjab

CITATION: AIR 1967 SC 1643: (1967) 2 SCR 762

JUDGES: K. Subba Rao, C.J, Justice C.A Vaidialingam, Justice G.K Mitter, Justice J.C Shah, Justice J.M Shelat, Justice K.N Wanchoo, Justice M Hidayatullah, Justice R.S Bachawat, Justice S.M Sikri, Justice V. Bhargava and Justice V. Ramaswami.

DATE OF DECISION: 27-02-1967

TOPIC: Principle of Basic Structure of the Constitution


Golaknath along with his brother William held the waste land jointly in the state of Punjab. However under 1953 Punjab Security of Land Tenures Act, the collector for Jalandhar held that Golaknath and his brother had kept 30 acres of land as a result of which he (Golaknath) challenged the 1953 Punjab Act on the ground that it deprived them of their Constitutional right to acquire and hold property and practice any profession guaranteed by Art 19(f) and (g). They also challenged the legality of 17th Constitutional Amendment Act which placed the Punjab Act in the IXth Schedule of the Constitution.


  • Whether power to amend the Constitution resides in Art 368 or in residuary power of Parliament u/A 248 read with Entry 97, List-1.
  • Whether the Fundamental Right in Part-III can be amended and abridged by the procedure in Art 368.
  • Whether the 17th Constitutional Amendment Act is invalid for contravention of Art 13(2) of the Constitution of India.


Fundamental Rights are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner like best. Our Constitution is our pride, in addition to well-known fundamental rights, it also includes the rights of minorities and other backward communities in such rights. [1]

The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament. At the same time Part-III and Part-IV of the Constitution constitute an integrated scheme forming a self-contained code. The scheme is made so elastic that all DPSPs can reasonably be enforced without taking away or abridging the fundamental rights.[2] The Constitution has given a place of permanence to the fundamental freedoms. Art. 13 merely incorporates reservation; this article is however not the source of the protection of our fundamental rights but the expression of reservation.

It is the duty of Parliament to enforce DPSPs . Art 368 in terms only prescribes various steps in the matter of amendment. The power of the parliament to amend the Constitution is derived from Art 245, 246 and 248 read with item 97 in List-1.[3] The residuary power of Parliament can certainly take in the power to amend the Constitution. Though a law made u/A 245 is an amendment made u/A 386 , it would necessarily be inconsistent with the Articles sought to be amended. The limitation in Art 245 is in respect of the power to make a law and not of the law made within the scope of its power. An order by the President u/A 392 cannot attract Art 368 as the amendment contemplated by the latter provisions can be initiated only by the introduction of a bill in the Parliament. It cannot therefore be said that if the power of amendment is held to be a legislative power the president acting u/A 392 can amend the Constitution in terms of Art 368.

Therefore, amendments either u/A 368 or under other articles are only made by Parliament following the legislative process and are “law” for the purpose of Art 13(2).

Art 13(2) for the purpose of that Article gives an inclusive definition of “Law”. It does not prima facie exclude Constitutional Law. The process u/A 368 itself closely resembles the legislative process.


Fundamental rights cannot be abridged or taken away by the amending procedure in Article 368 of the Constitution. An amendment to the Constitution is “Law” within the meaning of Article 13(2) and is therefore subject to Part-III of the Indian Constitution.

For more case briefs, click here.

References: –




Author Details: Upasana Borah (Student, N.E.F LAW COLLEGE GUWAHATI).


Leave a Reply