Sajjan Singh v State of Rajasthan

Facts

• The Constitution (Seventeenth Amendment) Act, 1964 amended Art.31A and added a large number of State land reform statutes to the Ninth Schedule, thereby protecting them from challenge on the ground of inconsistency with fundamental rights.
• The petitioner challenged the amendment on two grounds.
• First, that a constitutional amendment is "law" within Art.13(2), so it cannot take away or abridge fundamental rights, and that Shankari Prasad Deo v Union of India (1951) had been wrongly decided.
• Second, that by immunising those statutes from challenge the amendment had in effect curtailed the jurisdiction of the High Courts under Art.226, so it made a change in Chapter V of Part VI and required ratification by the Legislatures of not less than half the States under clause (c) of the proviso to Art.368(2).
• No such ratification had been obtained.

Issue

1. Whether Shankari Prasad was correctly decided; and whether an amendment which incidentally affects the jurisdiction of the High Courts requires ratification under the proviso to Art.368(2).

Held

• The amendment was upheld by majority. Shankari Prasad was affirmed: the word "law" in Art.13 refers to ordinary legislative law made in exercise of legislative power and not to a constitutional amendment made in exercise of constituent power, so fundamental rights may be amended. On the ratification point, the Court held that the effect on Art.226 was incidental and not direct: the amendment did not alter the terms of Art.226 or the powers it confers, but merely reduced the field in which those powers could be exercised by validating certain laws. An incidental consequence of that kind is not a "change in" the Chapter relating to the High Courts, so clause (c) of the proviso was not attracted and ratification was unnecessary. Hidayatullah J and Mudholkar J, though concurring in the result, expressed serious doubts, questioning whether the fundamental rights were intended to be the plaything of a special majority, and Mudholkar J raised the possibility that the Constitution has basic features which cannot be altered at all.

Ratio Decidendi

The distinction between constituent and legislative power, once accepted, determines the Art.13 question, since Art.13 speaks to the exercise of legislative power. On ratification, the proviso is to be read according to its terms: it requires ratification for a change in the specified provisions, and a provision is not changed merely because the occasions for its use are diminished, otherwise almost every amendment would require ratification because almost every amendment alters what the courts may be asked to decide.