Shankari Prasad v. Union of India — Practical Impact on Constitutional Amendment Practice

Shankari Prasad v. Union of India (AIR 1951 SC 458), decided by a 5-judge Constitution Bench on 5 October 1951, is the foundational Supreme Court authority on the scope of Parliament's amending power under Article 368 of the Constitution of India. For practitioners, the judgment settles three propositions of continuing utility: (1) a constitutional amendment under Article 368 is an exercise of constituent power and is not "law" within the meaning of Article 13(2), so fundamental-rights challenges cannot be brought directly under Article 13; (2) the Ninth Schedule architecture — Articles 31A, 31B, and the Ninth Schedule inserted by the Constitution (First Amendment) Act, 1951 — is constitutionally valid; and (3) in challenges to constitutional amendments, the threshold question is procedural compliance with Article 368, with substantive review confined to basic-structure grounds (post-Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225) and Ninth Schedule review (post-I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1).

Case snapshot

Material facts and procedural posture

The Constitution (First Amendment) Act, 1951 was enacted within 16 months of the Constitution's commencement, principally to shield post-independence agrarian reform legislation from challenge under Articles 14, 19, and 31. The amendment inserted Article 31A (saving of laws providing for acquisition of estates), Article 31B (validation of Acts and Regulations specified in the Ninth Schedule), and the Ninth Schedule itself, which initially contained 13 entries including the Bihar Land Reforms Act, 1950. Shankari Prasad Singh Deo, a zamindar from Bihar affected by these reforms, filed a petition under Article 32 challenging the First Amendment on two principal grounds: first, that the amendment was itself "law" under Article 13(2) and therefore void to the extent it abridged fundamental rights; and second, that the amendment affected the judicial powers of the Supreme Court and High Courts and required ratification by State legislatures under the proviso to Article 368(2) which had not been obtained. The Court rejected both contentions unanimously.

Ratio decidendi

1. "Law" in Article 13(2) does not include constitutional amendments — Chief Justice Patanjali Sastri, writing for the unanimous Bench, held that Article 368 is located in Part XX of the Constitution dealing with amendment, and the power conferred is constituent power of a different order from the ordinary legislative power exercised under Articles 245-246. Article 13(2) contemplates ordinary legislation made by a legislature in exercise of legislative power and does not extend to constitutional amendments.

2. Plenary amending power — The Court held that the language of Article 368 is "perfectly general" and empowers Parliament to amend the Constitution without any exception. Any limitation on the amending power must be found in express or necessarily implied terms of Article 368 itself, not imported from Part III.

3. First Amendment procedurally valid — The Court held that the First Amendment affected only Part III rights and did not fall within the proviso to Article 368(2) requiring State ratification. The special majority procedure prescribed by the main body of Article 368 was therefore sufficient.

4. Ninth Schedule architecture upheld — Articles 31A, 31B, and the Ninth Schedule were held to be valid constitutional provisions that insulate listed legislation from challenge under Articles 14, 19, and 31. This holding permitted the entire post-independence land reform programme to proceed without constitutional obstruction.

Current statutory framework and doctrinal evolution

Article 368 today: Article 368 continues to govern constitutional amendments. The Constitution (Twenty-fourth Amendment) Act, 1971 expressly inserted Article 368(1) to state that Parliament may "amend by way of addition, variation or repeal any provision of this Constitution" and amended Article 13 to insert clause (4) stating that "Nothing in this article shall apply to any amendment of this Constitution made under Article 368." This legislative confirmation of Shankari Prasad was itself upheld in Kesavananda Bharati, though subject to the basic-structure limitation.

Basic structure limitation: Post-Kesavananda Bharati (1973), while constitutional amendments remain outside Article 13(2), they are subject to substantive review on the ground that they do not destroy or damage the basic structure of the Constitution. The Minerva Mills v. Union of India (1980) 3 SCC 625 judgment struck down Sections 4 and 55 of the 42nd Amendment applying this test.

Ninth Schedule review — I.R. Coelho: The 9-judge Bench in I.R. Coelho (2007) held that Ninth Schedule entries inserted after 24 April 1973 are subject to judicial review on the touchstone of fundamental rights forming part of the basic structure, particularly Articles 14, 19, and 21. Entries added before this date continue to enjoy the Shankari Prasad / Article 31B immunity.

Right to property: Article 31 (right to property as a fundamental right) was repealed by the Constitution (Forty-fourth Amendment) Act, 1978, and property rights are now governed by Article 300A (constitutional right, not a fundamental right). Shankari Prasad's specific holding on Article 31 is therefore of historical interest only, though the broader holding on amending power remains central.

Subsequent developments

• Sajjan Singh v. State of Rajasthan (1965) 1 SCR 933 — A 5-judge Bench reaffirmed Shankari Prasad by a 3:2 majority, upholding the Seventeenth Amendment adding more entries to the Ninth Schedule.
• Golaknath v. State of Punjab (1967) 2 SCR 762 — An 11-judge Bench overruled Shankari Prasad 6:5, holding that Parliament cannot amend fundamental rights. This holding stood only for six years.
• Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 — A 13-judge Bench overruled Golaknath 7:6 and restored Parliament's power to amend fundamental rights, but subject to the basic-structure limitation. The court simultaneously upheld the Twenty-fourth Amendment.
• Minerva Mills v. Union of India (1980) 3 SCC 625 — Struck down clauses 4 and 5 of Article 368 (inserted by the 42nd Amendment) for destroying the basic structure by attempting to place amendments beyond judicial review.
• I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1 — Held that post-1973 Ninth Schedule entries are subject to basic-structure review.

Practice implications

Framing challenges to constitutional amendments: When drafting a petition challenging a constitutional amendment, counsel must recognise that Article 13(2) and direct fundamental-rights grounds are unavailable after Shankari Prasad (as refined by Kesavananda Bharati). The correct framing is: (1) procedural non-compliance with Article 368, including State ratification where the proviso applies; (2) basic-structure violation identifying the specific feature damaged (secularism, federalism, judicial review, rule of law, free elections, separation of powers); and (3) for Ninth Schedule entries added after 24 April 1973, direct fundamental-rights review under the I.R. Coelho test.

Defending constitutional amendments: Counsel defending an amendment should invoke Shankari Prasad at the threshold to displace Article 13(2) and Article 32 fundamental-rights arguments, and then argue that the amendment does not damage any basic feature. The textual argument — that Article 368 is plenary — remains powerful and should be the opening move in any defence.

Ninth Schedule entry addition: When advising the government on inclusion of legislation in the Ninth Schedule, the post-I.R. Coelho reality is that inclusion does not confer absolute immunity. The legislation must itself withstand basic-structure review measured through the lens of Articles 14, 19, and 21. Counsel should audit proposed legislation for basic-structure compliance before relying on Ninth Schedule protection.

Federalism amendments: Amendments affecting the Seventh Schedule, Articles 54, 55, 73, 162, 241, 245-255, or the proviso entries require ratification by at least half of the State legislatures under the proviso to Article 368(2). Shankari Prasad confirms that this proviso is a procedural requirement whose non-compliance is a complete ground for striking down the amendment.

Pleading strategy: Shankari Prasad is a useful citation in any amendment-power brief. It should be paired with Kesavananda Bharati, I.R. Coelho, and Minerva Mills to present a doctrinally coherent picture. Selective citation of Shankari Prasad alone risks an adverse inference that counsel is ignoring subsequent limitations.

Source attribution

Judgment text available at the Supreme Court of India website: sci.gov.in. This analysis is based on the primary judgment text and does not rely on any third-party legal news portal. Disclaimer: This article is Veritect Legal Intelligence's analysis for informational purposes and does not constitute legal advice. Readers should consult qualified counsel for case-specific guidance.