Doctrine of Harmonious Construction
Doctrine of Harmonious Construction
Doctrine of Harmonious Construction
CASE LAW
Shankari Prasad Vs. Union of India, 1951
(The Parliament, under A. 368, has power to amend any part of the constitution)
Facts
The political party in power had carried out certain agrarian reforms in Madhya
Pradesh, Uttar Pradesh, Bihar by enacting legislation which may be compendiously
known as Zamindari Abolition Acts.
Certain Zamindars, feeling aggrieved, had challenged the aforementioned enactments
in the Court of law on the grounds that it contravened the Fundamental Rights
conferred on them by part III of the Constitution of India.
The High court at Patna held that the Acts passed in Bihar were unconstitutional,
while the High Courts at Allahabad and Nagpur upheld the validity of the acts in U.P
and M.P, respectively.
Appeals from those decisions were made and the Union Government, in order to put
an end to these litigations and also as a remedy to certain defects, brought forward the
bill of amendment.
The aforementioned Bill, after receiving the requisite majority came to be known as
the Constitution (First) Amendment Act, 1951.
As a reaction to this move of the Government, the Zamindars brought their petitions
under Article 32 of the Constitution of India, impugning the Amendment Act itself as
void and unconstitutional.
The provisional Parliament was not competent to exercise that power under art. 379 as
the power of amending the Constitution provided for under art. 368 was conferred not
on Parliament but on the two Houses of Parliament as a designated body.
In any case art. 368 is a complete code in itself and does not provide for any
amendment being made in the bill after it has been introduced in the House. The bill
in the present case having been admittedly amended in several particulars during its
passage through the House, the Amendment Act cannot be said to have been passed in
conformity with the procedure prescribed in art. 368.
The Amendment Act, in so far as it purports to take away or abridge the rights
conferred by Part III of the Constitution, falls within the prohibition of art. 13 (2).
It was challenged that Amendment (in this case an amendment to Article 31A and
31B) that take away fundamental right of the citizens is not allowed by article 13. It
was argued that “State” includes parliament and “Law” includes Constitutional
Amendments.
It was submitted- as the fundamental law of the country, the Constitution should not
be liable to frequent changes according to the whim of party majorities, the framers
placed special difficulties in the way of amending the Constitution as the constitution
provides for three classes of amendments that are;
1) those that can be affected by a bare majority such as that required for the passing
of any ordinary law.
2) Secondly those that Can be affected by a special majority as laid down in art. 368
3) Thirdly, those that require, in addition to the special majority above-mentioned,
ratification by resolutions passed by not less than one-half of the States specified
in Parts A and B of 'the First Schedule.
With respect to Art. 13(2), it was argued that "The State" includes Parliament (article
12) and "law" must include a constitutional amendment. It was the deliberate
intention of the framers of the Constitution, who realized the sanctity of the
fundamental rights conferred by Part III, to make them immune from interference not
only by ordinary laws passed by the legislatures in the country but also from
constitutional amendments.
There are other important considerations about the above argument which point to the
opposite conclusion as- there is a clear demarcation between ordinary law, which is
made in exercise of legislative power, and constitutional law, which is made in
exercise of constituent power.
No doubt our constitution-makers, following the American model, have incorporated
certain fundamental rights in Part III and made them immune from interference by
laws made by the State
However, in the absence of a clear indication to the contrary, it is difficult to suppose
that they also intended to make those rights immune from constitutional amendment.
Thus, in the context of art. 13 "law" must be taken to mean rules or regulations made
in exercise of ordinary legislative power and not amendments to the constitution made
in exercise of constituent power, with the result that article 13(2) does not affect
amendments made under art. 368.
JUDGEMENT
Facts
State urged that the petitioner was confirmed as Sub-Inspector by the Deputy
Inspector General of Jaipur Range, and, therefore, the order of dismissal passed by
him was competent.
He was given sufficient opportunity to explain his conduct and there was no
irregularity in the proceedings.
State was relied on the observations in the Annual Inspection Report for the year 1950
by the Deputy Inspector General Police Jaipur Range recorded sometime in March,
1951.
Rajasthan Civil Services Rules, 1950, had been brought into force on 20th November,
1950, and the Deputy Inspector General had been conferred the power of first
appointment, and the confirmation recorded in the Inspection Note should be taken to
be an order of first appointment.
That he had been appointed by the Inspector General of former Jaipur State as sub
Inspector in 1948.
Observations
That while the Deputy Inspector General of each Range was given the powers of
appointment of Sub-Inspectors of Police on integration of services, this power was not
exercised by them and they only made a recommendation to the Inspector General of
Police and the Inspector General actually passed the orders.
Under Article 311 of the Constitution a person cannot be removed from service by an
authority sub ordinate to that by which he was appointed.
Final Judgment
The petition was allowed and the order of dismissal passed by the Deputy Inspector
General, Jaipur Range on 11th August, 1953, was declared, unconstitutional and was
thereby set aside. The petitioner was to get his costs from the State of Rajasthan.
(The Parliament is not powered to amend the Part III (Fundamental Rights))
Facts
the family of one William Golak Nath had over 500 acres of property in Punjab
Acting under Punjab Security and Land Tenures Act, 1953 which was placed in 9th
Schedule by the 17th Constitutional Amendment Act, 1964 the state government
intimated to petitioner that he can now only possess 30 acres of land & rest will be
treated as surplus.
Aggrieved by this intimation of the state government petitioner filed a writ petition
u/a 32 of Indian constitution and pleaded the violation of his FR’s mentioned u/a
19(1)(f) i.e. Right to Hold & acquire property, 19(1)(f) Right to practice any
profession & 14 (Equality before Law & Equal protection of laws).
Issue
PETITIONER’S ARGUMENTS
RESPONDENT’S ARGUMENTS
JUDGMENT
1. The minority bench was fearful of the stance of majority in the sense that if
majority’s opinion becomes established law then it would grant tough rigidity to
the Constitution. They were sceptical that if Parliament is not provided with
amending competence the Constitution would become static & all the dynamic
nature of Constitution will meet death.
2. In accordance with the minority opinion although the procedure of Article 368
does very much correspond to the legislative process but it is different from
ordinary legislation.